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EDUCATIONAL USES OF MEDIA
Frequently Asked Questions about the
2009 educational exemption to the
Digital Millennium Copyright Act

The 1998 Digital Millennium Copyright Act makes it illegal to bypass the software "locks" on DVDs and other digital media, colloquially known as Digital Rights Management. Every three years, however, the Copyright Office of the United States reviews petitions to create specific exemptions to this ban on circumvention. In the 2006 rulemaking, University of Pennsylvania professors Peter Decherney, Katherine Sender, and Michael Delli Carpini successfully petitioned for an exemption for media professors making clips for teaching purposes. Not only was their exemption granted, but they persuaded the members of the Copyright Office to reconsider the methodology used to evaluate potential exemptions. As a result, the exemption process began to come into line with fair use, and the door was opened for more and broader exemptions. In the 2009 rulemaking, Decherney, Sender, and Delli Carpini were joined by a coalition of organizations to propose an expanded exemption. They were again successful, and the new exemption now applies to all "professors" who make clips for teaching. It also applies to documentary filmmakers, anyone making clips for noncommercial uses, and media studies students. The exemption only applies when clips are made from DVD for the purpose of criticism and comment, but it covers a wide range of activities undertaken educators and students. The exemption will need to be renewed and updated in 2012. To help with the renewal and possible expansion of the exemption, it would be valuable if you sent stories about your use of the exemption and, if applicable, your need for a broader exemption. You can read the related rulemaking documents at www.copyright.gov/1201. Questions and comments can be sent to exemptions@sas.upenn.edu.

 

THE EXEMPTION

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System 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.

 

FREQUENTLY ASKED QUESTIONS

Do you have to be a full-time faculty member to use the exemption?
The exemption is for "professors." We interpret that mean anyone teaching at the college or university level.

The exemption says "motion pictures." What if I want to copy a clip from a television show?
"Motion pictures" is defined by the Copyright Act as, "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." That is a broad category that certainly includes television shows. The ruling, however, specifically mentions video games and slide shows as works that the Copyright Office did not intend to be covered by the exemption.

How do I copy DVDs?
There are many programs out there that allow you to make copies of portions of DVD. Handbrake is a particularly effective program that works for both Macs and PCs. Note that the DMCA bans creating or trafficking in devices that bypass encryption.

Can I copy any DVD? What about my Netflix DVDs?
You may only copy legally acquired DVDs. Furthermore, copying a DVD may violate a specific license, such as the license you agree to when you rent a DVD from Netflix.

May I copy an entire DVD?
The exemption does not specify how much you may copy, but you may only use "short portions" of DVDs.

How many minutes count as a "short portion?"
There is no absolute time or percentage limit. You may copy as much as you need, provided that the amount is still relatively short.

Can I copy Blu-Ray disks?
No. Blu-Ray is a different standard than DVD. We will have to make a better case for Blu-Ray disks in 2012.

What if I am not a film or media studies student, but I need to make a clip for a class project?
The exemption only covers film and media studies students. But if your use is noncommercial, you may still be covered by the exemption.

Can I post clips to the web?
The exemption applies to the act of bypassing encryption in order to make a copy. What you do with that copy is subject to the doctrine of fair use or a specific exemption to copyright law. In some cases, fair use allows educators to post short clips to the web. For some guidelines, see the best practices guidelines established by the Society for Cinema Studies (cmstudies.org), the International Communication Association (icahdq.org), and the Center for Social Media (centerforsocialmedia.org).

What if I need to use a clip that is only available on iTunes or on a Blu-Ray disc?
The exemption only applies to DVDs. But you may use screen capture software (SnapzPro and others). The quality is not always sufficient, but for now there is no legal alternative.

Can I make a compilation of funny clips to show my class?
No. The clips must be used for comment and criticism, not entertainment alone.

What if I teach outside of the United States?
Both the DMCA and the exemption only apply within the United States. Many other countries have anticircumvention laws and many have their own statutory exemptions.

Questions? Contact Peter Decherney at decherney@sas.upenn.edu