Augsburg 08/16/11

Presentation slides are linked as "attachments", below.

Fair Use

"Can I Use That?": Fair Use In Everyday Life detailed handout from fair use workshops

Digitizing Films

Overview of presentation content (I'll add any additional discussion points that I remember, after the fact.)
  1. Digitizing and streaming are two separate copyright issues. Digitizing is making copies; streaming is either a public performance or distributing copies - or both.
    1. Making the copy in the first place might be allowed under §108 of the copyright code, or it might be fair use. 
      1. Anything that is encrypted presents a second issue - decrypting is a DMCA violation
    2. Streaming may be permitted under a Classroom Use Exemption argument, under the TEACH Act, or as a fair use. The first two are fairly novel arguments.
  2. Section 108 justifications for copying
    1. Caveats: most of section 108 doesn't apply to films; NONE of section 108 applies to anyone except a library.
    2. 108(b) allows for preservation copies to be made - of unpublished works
      1. The work to be digitized has to be in the collection of the digitizing library
      2. Digital copies can't be made available "outside the premises"
    3. 108(c) allows for replacement copies of works that are damaged, deteriorating, lost, stolen, or obsolete
      1. Have to make “reasonable effort” to see if unused replacement can be “obtained at a fair price.”
      2. Digital copies can't be made available "outside the premises"
  3. Other legal bases for digitizing
    1. Classroom Use - 110(1)
    2. TEACH Act - 110(2)
    3. Fair use

DMCA issues

  1. DMCA Basics

    1. DMCA = Digital Millennium Copyright Act. (1998, P.L. 105-304)
      Amended/added to existing copyright laws, included several different provisions.

    2. Anticircumvention”- 17 U.S.C. § 1201

      1. Prohibits circumvention of technological protection measures (TPM) on copyrightable content - 17 U.S.C. § 1201(a)(1)(A)

        1. Circumventing to get at public domain works not prohibited
          (they're “works not covered by this title”)

        2. Circumvention

          • Decryption, descrambling, or “otherwise to avoid, bypass, remove, deactivate, or impair” w/out authority of the copyright owner 17 U.S.C. § 1201(a)(3)(A)

          • Not the same thing as copyright infringement; separate new violation of law

        3. Technological measures that effectively control access”

          • if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”

    3. Most common interpretation of the DMCA - circumvention = violation, even when you are making a legal or permitted use

      1. Other interpretations disagree!

        1. MGE UPS Systems Inc. v. GE Consumer and Industrial Inc., 5th Cir. 2010

          Info/Law blog, “DMCA: Fifth Circuit inches closer to “fair circumvention” defense” July 26th, 2010 by Tim Armstrong

      2. Competing legal precedents; many uninterpreted pieces of law.

    4. § 1201 Rulemaking

      1. Triennial process that results in exemptions from anticircumvention law

        1. Exemptions VERY narrow, only granted as a result of specific petition.

  2. DVDs & the DMCA

    1. Basics

      1. All DVDs are encrypted (CSS = Content Scramble System)

        1. Decryption = circumvention, if unauthorized

        2. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000), aff'd, 273 F.3d 429 (2d Cir. 2001). First DeCSS (DVD decryption) case. More info at

      2. Playing a DVD w/authorized player, & any other uses that don't involve circumvention have nothing to do with the DMCA – may still be © issues.

    2. Non-circumventing uses

      1. MPAA, in rulemaking arguments, suggested teachers could use camcorders pointed at screens showing DVDs playing legally

        1. MPAA's argument was that this was not circumventing.

        2. Video: “MPAA shows how to videorecord a TV set” from 2009 rulemaking proceedings Timothy Vollmer -

      2. Marybeth Peters followed MPAA line of reasoning, said, if capturing legally-playing video with camera is not circumventing, then surely screen capture software is not circumventing either.

        1. Not a binding legal interpretation!! (But little other guidance anywhere.)

    1. Anticircumvention Exemptions – results of rulemaking process

      1. Circumvention allowed, for DVDs only, when the following criteria are met:

        1. Purpose must be “incorporation of short portions of motion pictures into new works for the purpose of criticism or comment”

            short portions” not defined – might not be proportional
            “new works” - might need to be making compilation, at minimum


        2. Must “believe and have reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use”

            i.e., lower-quality video from screen capture will not suffice.

      2. Only applies to certain populations/types of uses:

        1. Educational uses by college and university professors and by college and university film and media studies students

            Not K-12 educators, & not college/university students outside of film & media studies – regulators commented screen capture should suffice.

        2. Documentary filmmaking

        3. Noncommercial videos

            Appears to be a catch-all, but regulatory docs suggest otherwise; the more a use is for criticism/commentary, the better it fits this class

            • Seriously conflates whether exemption applies at all w/whether use is a particular type of fair use (“transformative use”)

          • May be a bit of a catch-all anyway, for K-12 educators, students, and others whose activities fit the described purposes.

    2. Example videos

      1. RIP: A Remix Manifesto, by Brett Gaylor

      2. UMN Zoology Vodcasts –

      3. Buffy vs Edward: Twilight Remixed

Nancy Sims,
Aug 16, 2011, 8:45 AM
Nancy Sims,
Aug 16, 2011, 8:45 AM