The DMCA is restricting some filmmakers from doing their work.
The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in 1998 as an attempt to update copyright law in accordance with the changing technology of the times. Part of the legislation, Section 1201, makes it illegal to break digital locks placed on copyrighted material, even if the intended use of the work is legal.
Starting to see some red flags?
As a filmmaker who regularly incorporates copyrighted material into my documentaries, I sure do. Filmmakers and authors have long held the right to make fair use of copyrighted material, transforming it for uses like criticism and commentary, making arguments, and providing historical context. But the DMCA made it illegal—and, in some cases, a crime—to access this content by breaking encryption. As a result, the DMCA inadvertently chills fair use and other lawful activities that are central to free expression in a democracy and the livelihoods of other filmmakers like me. In a democracy, we cannot keep culture locked up.
The DMCA's built-in solution, which requires content creators and filmmakers like me to petition for an exemption to this rule every three years, is problematic in its own right. For the past several years, my Kartemquin Films colleague Jim Morrissette and I have been part of the team led by Jack Lerner and the students from his law clinic at UC Irvine, along with Chris Perez from Donaldson & Callif LLP, that demonstrates to the Copyright Office why the documentary filmmaking community should be exempt from this harmful DMCA provision. We first learned about the importance of defending fair use when we helped to create the Documentary Filmmakers' Statement of Best Practices in Fair Use, which was coordinated by Patricia Aufderheide and Peter Jaszi from American University.
Fortunately, the latest decision, which came out in the fall, allows documentary filmmakers and authors offering film analysis to access encrypted content from DVDs, Blu-ray discs, and digitally transmitted video for purposes of fair use.
Unfortunately, the Librarian of Congress did not grant exemptions for narrative filmmakers—those who create non-documentary films like biopics, art films, etc. What is concerning about this decision was that the Copyright Office seemed to be putting limits on what can be claimed as fair use for narrative filmmakers, a decision which is supposed to be left to the courts. This decision was made despite the evidence we submitted and recommendations to the contrary by the National Telecommunications and Information Administration (NTIA) to the Register of Copyrights.
Our experience this last go round illustrates the urgent need for changes to the current system: The Copyright Office's decisions are never a sure bet, and free expression becomes the victim as a result. Just three years ago, for example, we argued for an exemption to circumvent digital locks on Blu-Ray disks before the Copyright Office and didn't get it. This time around, while we clarified some language, we didn't change much else and yet we won.
The unpredictability of the decision-making process also stifles innovation. How can artists justify investing time and money into cutting edge technologies if their ability to use them in just a couple of years without violating Section 1201 of the DMCA is uncertain? Not to mention the fact that many of these technologies are developed and enhanced several times over within the three-year timespan between exemption decisions. If filmmakers use these technologies to incorporate copyrighted materials into their work under fair use, but the technology is too young to have an exemption, the filmmakers put themselves at risk. The current system simply can't keep up with technological developments in the field.
Let us remember that the purpose of copyright law, after all, is to empower creators to create, to find inspiration in existing works and build upon them, which enriches the cultural ecosystem at large. The DMCA's anti-circumvention provision and the burdensome exemption process constrain artists from taking reasonable steps to contribute to the creative community.
While Section 1201 of the DMCA creates a huge burden for colleagues in my field, its impact extends well beyond the filmmaking world. The process sucks time and resources from well-intended creators across an array of industries who come before the Copyright Office's makeshift tribunal themselves: Remixers, college professors, media literacy teachers, e-book writers, students, and more.
So, you might ask, what's the fix?
There is no one answer here, but it's clear that this part of the DMCA is in dire need of legislative action. A system that gives deference to groups who have successfully petitioned for exemptions in the past is a solid start. Various other proposals have been floated, from permitting users to circumvent digital locks unless they infringe a copyright, to eliminating the triennial review process altogether.
The outdated and cumbersome exemption process has trumped common sense for far too long, and artists and many others have suffered for it. Something must be done to fix the DMCA, and artists should not have to bear the burden any longer. It's time Congress rises to the challenge.
Gordon Quinn is the founder and artistic director of Chicago-based Kartemquin Films. He was recently honored with the International Documentary Association's 2015 Career Achievement Award. Courtney Duffy (@cduffy90) is the Robert W. Deutsch Arts & Technology Policy Fellow at Fractured Atlas and Public Knowledge.