Copyright Office decision frees filmmakers to break encryption

Documentary filmmakers have won a ruling from the U.S. Copyright Office that allows them to legally break the encryption codes of DVDs and online streaming content to obtain clips for their projects.

The material still must fall under the “fair use” exemption of copyright law, but the decision by Register of Copyrights Maria A. Pallante was hailed as a victory for non-fiction filmmakers seeking high-quality clips for their movies. The decision also allows educators and multimedia e-book authors, as well as makers of non-commercial videos, to circumvent copy-protection software to obtain such clips, although the use has to be limited in scope.

Pallante determined that “when a short excerpt of a motion picture is used for the purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard,” according to the ruling published in the Federal Register on Friday. A rationale was that other means of obtaining the material, like screen capture, often do not produce the desired quality.

“Without this exemption, many important projects currently in production could not have been made,” said Michael Donaldson, the entertainment attorney who represented a coalition of documentary filmmakers including the Intl. Documentary Assn. in pushing for the exemption. “This is a great day for documentary filmmaking and for the future of books.”

Donaldson worked with Jack Lerner, professor at USC Intellectual Property and Technology Law Clinic, in leading the push for the exemptions. The Digital Millennium Copyright Act of 1998 prohibits interfering with encryption technology, although the Copyright Office has issued certain exceptions in the years since.

The Copyright Office stopped short of granting the exemption to makers of fiction films, noting that there was not enough evidence to support the view that such a waiver would not result in uses that infringe on copyrights.

The Copyright Office also rejected efforts to allow consumers to legally break DVD encryption codes so copies could be made for use on other devices, like laptop computers and tablets.

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