Movie Clips and Copyright

If the words “sweeping new exemptions to the anti-circumvention provisions of the Digital Millenium Copyright Act” make you want whoop for joy and join a conga line, you just might be a fair use advocate — one who wants professors and students to be able to decrypt and excerpt copyrighted video content for lectures and class projects. Since Monday, a lot of advocates have been dancing.

July 28, 2010

If the words “sweeping new exemptions to the anti-circumvention provisions of the Digital Millenium Copyright Act” make you want whoop for joy and join a conga line, you just might be a fair use advocate — one who wants professors and students to be able to decrypt and excerpt copyrighted video content for lectures and class projects. Since Monday, a lot of advocates have been dancing.

“This is very exciting,” says Patricia Aufderheide, a communications professor and director of the Center for Social Media at American University. “We’re doing nothing but chat about this, we’re so excited.”

The thing that has made so many professors abuzz — and a-blog — is the latest round of rule changes, issued Monday by the U.S. Copyright Office, dealing with what is legal and what is not as far as decrypting and repurposing copyrighted content.

One change in particular is making waves in academe: an exemption that allows professors in all fields and “film and media studies students” to hack encrypted DVD content and clip “short portions” into documentary films and “non-commercial videos.” (The agency does not define “short portions.")

This means that any professors can legally extract movie clips and incorporate them into lectures, as long as they are willing to decrypt them — a task made relatively easy by widely available programs known as “DVD rippers.”

The exemption also permits professors to use ripped content in non-classroom settings that are similarly protected under “fair use” — such as presentations at academic conferences.

Using film content as an educational tool is a popular practice. For example, a professor teaching a course on the sociology of crime might want to use excerpts from the HBO drama The Wire in a lecture or presentation, says Jason Mittell, an associate professor of American studies and film and media culture at Middlebury College. (In fact, a number of them have.) Or a natural history professor might want to show clips from the Planet Earth series.

Even professors in less obvious fields might want to avail themselves of these influential pop-culture artifacts to drive home an idea to students. Edward W. Felten, a longtime fair-use advocate who teaches computer science and public affairs at Princeton University, said he could imagine using movie clips to compare and contrast actual computer hackers with how they are portrayed in movies. “The ways that movies tend to be edited and constructed often allow a point to be made more viscerally,” Felten says.

Others agree that using familiar examples from Hollywood can be an engaging way to illustrate academic concepts. While a previous round of exemptions made it OK for film and media studies professors to clip out films, the new act extends the privilege to all professors. (The U.S. Copyright Office issues new rules every three years or so since Congress incorporated anti-circumvention rules into the Digital Millennium Copyright Act, or DMCA, when it passed the landmark legislation in 2000.)

By the same token, it allows professors in “film and media studies” courses to instruct students to make “non-commercial videos” — documentaries, mash-ups, etc. — for assignments. Even students not enrolled in film or media studies programs who wish to rip DVD content for class projects might be covered by the new exemption in some cases, Mittell says, since they are, in a way, students of media and film.

This is not to say professors have not used film clips to enhance teaching, he says. But the hassle of cuing up a scene, then navigating menus or fast-forwarding to a different scene — or, God forbid, switching in a different disc, waiting out previews, and navigating a new menu to highlight a scene that may not last longer than a minute or two — discourages many faculty members from bothering to use film clips at all, quite probably to the detriment of their lessons, says Mittell.

“It would be the equivalent of a literature professor who is only allowed to prepare one quote to read aloud per class, and if you want to read more than one, it will take you five minutes to get to it,” he says. English professors come to class with key pages dog-eared. This exemption allows professors who want to draw on another kind of media — films and TV series — permission to do the same.

How Much Practical Impact?

The rule changes make it clear that professors and students can excerpt film content without worrying about being sued by production studios that own the copyrights. But experts say that some academics were doing this even before the Copyright Office made it legal to do so. Unlike the Recording Industry Association of America, which has famously sought to prosecute college students for pirating music files, the Motion Picture Association of America (MPAA) and other interested parties seem to have been less vigilant in pursuing campus violators.

In a hearing before the Copyright Office in May, film industry officials said they had no problem with professors and students using movie clips for educational purposes; one Time Warner official even said her company is developing a system whereby clips could be made available to professors by way of a download or secure Internet stream, free of charge — indicating that it is not a loss of sales revenue to higher education customers that they are worried about.

Rather, said an MPAA official at the hearing, the industry is worried that legalizing DVD decryption would open the gates to pirating outside of higher education. “An expansion of the current … exemption would undermine the technological and legal underpinning of the Content Protection System that is the basis for the DVD movie business,” said Fritz Attaway, an executive with the MPAA, which represents the six major U.S. film studios. “Once widespread legal circumvention of CSS is permitted, the ability to limit the scope of the use of the circumvention may well be impossible, thereby undermining the whole system.” The exemption would give students the “green light” to hack content scrambling systems “under the guise of class assignments,” Attaway said, making it difficult, if not impossible, for copyright owners to know what hacks were legitimate and which were piratical. (He suggested that professors and students videotape movies playing on their televisions instead.)

In response to Monday’s rule change, the MPAA issued a brief statement: “The Librarian [of Congress]'s decision unnecessarily blurs the bright line established in the DMCA against circumvention of technical protection measures and undermines the DMCA, which has fostered greater access to more works by more people than at any time in our history.”

None of the leading academic experts on this issue contacted Tuesday by Inside Higher Ed said they had heard of any lawsuits filed against colleges, universities, or students over the decrypting and clipping of copyrighted films.

But just because the MPAA has declined to hold a higher ed witch hunt does not mean every professor who wants to decrypt and excerpt DVDs for pedagogical purposes has been able to do so, says Aufderheide, the American University communications professor.

Aufderheide, who is currently researching how copyright issues affect librarians, says that while a small minority of professors are savvy enough to locate and use decryption software to extract DVD content, use editing software to clip the videos, and then embed the clips into a course website or a PowerPoint slide, the majority would need help from the library staff to do so. “They are really depending on their librarians,” she says. “And their librarians don’t do this for them, because it’s not legal.”

Librarians are usually too scrupulous, and too scrutinized by university lawyers, to assist faculty in breaking the law, says Aufderheide. Ditto campus information-technology hands. The outside possibility of an expensive lawsuit by a powerful body like the MPAA has been a deterrent, even if lawsuits against university targets have been rarely, if ever, carried out, says Aufderheide and several other experts in academe.

The new exemptions, however, will permit librarians to help professors and students decrypt, edit, and repurpose DVD content, says Aufderheide. Such services could become standard parts of the library’s service menu, which would almost certainly increase the frequency with which professors teach with excerpted film and television content.

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