Letting Us Rip: Our New Right to Fair Use of DVDs

[This is a guest post by Jason Mittell, Associate Professor of Film & Media Culture and American Studies at Middlebury College. Jason blogs at Just TV.]

This week saw the release of a seemingly minor bit of legal policy that has a major impact on academic uses of technology, expanding the scope of legal ways to extract video clips from DVDs for purposes of criticism and commentary. (An earlier post by Kathleen Fitzpatrick provided additional information on this ruling with regards to jailbreaking phones and accessing eBooks.) This ruling on DVD circumvention has a potentially transformative impact on faculty and students across a range of disciplines, and can hopefully help spur innovative scholarship and pedagogy. In this post, I’ll detail the policy shift and consider some of the ways it can be applied in teaching and research; in a follow-up post in a few weeks, I’ll offer a more technical guide on how to exercise your newly-legal right to rip clips from DVDs.

On Monday July 26, 2010, the U.S. Library of Congress released the policy paper, “Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.” This awkwardly titled document is the much-delayed 2009 ruling on exemptions to a particularly nefarious provision in the 1998 Digital Millennium Copyright Act (DMCA)—the anti-circumvention policy of the DMCA stipulates that it is illegal to bypass code that locks down a piece of software, hardware or other digital object, even if the resulting use of the copyrighted media is legal. This measure had a huge impact on scholars in a range of disciplines, who found it illegal to extract clips from DVDs to use in class, a lecture, or a digital publication.

Some film and media faculty have been fighting against this law for years, and this recent ruling represents the efforts of many scholars and activists to shift the balance away from the strict locked-down defaults of DVDs and other digital media. [Note: I participated in this fight as a very minor player, signing onto briefs and working with the Society of Cinema & Media Studies to promote fair use.] In 2006, the Library of Congress issued a narrowly-worded exemption in its triennial rulemaking for exceptions to the DMCA that allowed film & media studies faculty to rip clips from DVDs held in a departmental library for use in the classroom. I fell under this exemption and immediately began taking advantage of my newly-legal ability to make clips from my departmental collection and use them in my classes—given the areas of film, television, and other visual media that I teach, I frequently use up to a dozen short clips in a single meeting, and the ability to pre-compile them onto a single DVD or slideshow transformed my teaching.

However, many uses did not fit into the narrow categories designated by the 2006 ruling, excluding faculty in the wide range of disciplines who use DVDs, academic uses other than in classrooms (such as conference presentations and digital publications), student use for presentations or digital assignments, and DVDs housed outside of a departmental library. Additionally, the ruling suggested that only faculty could do the ripping, making it difficult for technologists or student support staff to help faculty with less technological savvy. This week’s ruling expands the terrain to include all of these uses and sources—to exercise my fair use rights, let me quote the exemption in full:

Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System [CSS] 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.

[Note: the term "motion picture" does not solely mean feature films—for the Library of Congress, it refers to "audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any." Hence, the term includes television, animation, and pretty much any moving image to be found on DVD.]

Rather than stipulating the specific user or source of the DVD, this new exemption focuses on the uses: noncommercial, educational, documentary, criticism, and commentary. It’s important to note that the longer explanation from the Library of Congress specifies that circumventing CSS on a DVD is only justified when non-circumventing methods, such as videotaping the screen while playing the DVD or using screen-capture tools through a computer, are unacceptable due to inadequate audio or visual quality. But nevertheless, this ruling greatly expands who can use ripping software to clip DVDs for academic and transformative use, including a range of derivative works like remix videos and documentaries.

What does this mean for faculty? Now, no matter your discipline, you (or your technological partners) can do what I’ve been doing for the past three years: assemble a personal (or departmental) library of clips to access for class lectures. Now we can expand the use of those clips to embed in conference presentations, public lectures, digital publications, companion websites or DVDs to include with print publications, or other innovative uses that had otherwise been stifled by legal restrictions. For me, having a hard drive full of video clips on hand enables a mode of improvisation not available with DVDs—if discussion shifts to talking about an example of a film or television show that I’ve ripped a clip for another course, I can instantly play it in class even without planning in advance by bringing the DVD. Think of the conference presentations you’ve seen where a presenter fumbles over cuing and swapping DVDs—with a little bit of planning, clips can be directly embedded into a slideshow to avoid awkwardly wasting time.

The ruling also allows “college and university film and media students”—and it’s up to you to decide whether your students fall under that rubric if they’re using film and media in a class, regardless of the official discipline—to rip DVD clips for academic purposes, such as in-class presentations or digital assignments. I regularly have students use video in their assignments, whether it’s pulling clips to present in class or creating remix videos to present their critical ideas in moving image form. Now I can show them the more straightforward way to rip clips without asking them to break the law for credit.

Copyright activists have referred to fair use as a muscle that will atrophy if not exercised. The newest exemption ruling has provided a new exercise regimen for academics and other media users to employ, expanding the possibilities for fair use of video a wide range of contexts. Alas, unless we keep exercising this right, it will atrophy, as the Library of Congress will review its exemptions again in 2012 to rule whether the current balance is sufficient, or fair use should be further restrained or expanded. Scholars, users and organizations will continue to push for broader exemptions—such as including K-12 education as an allowed site of fair use, or including downloaded or streamed media from sources like iTunes and Hulu as circumventable works—but media corporations will continue to push for more restrictions and permission-driven controls. Only by touting how fair use matters in our teaching and scholarship can we continue to be assured the right to rip. So how will you exercise your right under the new exemption?

Additional Reading:

• Organization for Transformative Works on the ruling’s meaning for remix video artists
• Center for Social Media on the ruling and their collection of Best Practices for Fair Use
• Society for Cinema & Media Studies statements on Best Practices for Fair Use in Film & Media Publishing and Teaching
• ReadWriteWeb on the essential cultural role of fair use

[Image by Flickr user NightRPStar / Creative Commons licensed]