Digital Learning Case Study:
Film Studies and the Law of the DVD1
I.
OVERVIEW
The emergence of digital versatile discs (“DVDs”) in 19972 revolutionized the study of
film.3 Now considered essential in the field, film studies professors rely on DVDs to access
volumes of copyrighted content never before available. New, easy-to-use editing technologies
enable professors to present films in ways that were infeasible using previous formats.4 This
should be a gilded age for film studies. Instead, it is a time of great uncertainty. Copyright laws
designed to protect the rights of those who make movies have undermined the legal protection of
those who teach them. In this digital age, professors who exploit the power of DVDs and digital
technology to educate their students risk legal sanction.
Conceived to “promote the Progress of Science and useful Arts,”5 copyright law attempts
a delicate balance between creators’ interests in controlling and profiting from their works, and
society’s interests in using those works and fostering innovation.6 Accordingly, from its
inception, copyright law has exempted certain uses of copyrighted materials – including
1
This case study was produced as part of the Digital Learning project by the Berkman Center for Internet and
Society at Harvard Law School. Primary research and drafting was conducted by Harvard Law student and
Berkman Center Student Fellow Jackie Harlow. This work is licensed under a Creative Commons Attribution/NonCommercial/ShareAlike License, as explained further at http://creativecommons.org/licenses/by-nc-sa/2.5/.
2
Throughout this Paper, the term “DVD” is used to refer to discs containing DVD-Video content. The term DVD
may also be used as a general term that refers to an optical storage technology capable of storing information in a
number of different formats, such as DVD-Video and DVD-Audio. See Jim Taylor, DVD-Video: Multimedia for the
Masses, IEEE MULTIMEDIA, July-Sept 1999, at 86 [hereinafter Multimedia for the Masses]. Though DVD format
was finalized in 1996, DVDs and their players were not released until 1997. See JIM TAYLOR, DVD DEMYSTIFIED
58-60 (2000) [hereinafter DVD DEMYSTIFIED].
3
Catherine Russell, New Media and Film History: Walter Benjamin and the Awakening of Cinema, CINEMA J.,
Spring 2004, at 82-3.
4
Interview with David N. Rodowick, Professor of Visual and Environmental Studies, Harvard University, in
Cambridge, Mass. (Sept. 28, 2005) (stating that DVDs are essential for teaching film studies, and describing how
DVDs have transformed film studies scholarship); Russell, supra note 2, at 82-83.
5
U.S. CONST. art. I, § 8.
6
See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[Copyright] is intended to
motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has expired.”).
numerous educational uses – from statutory liability.7 It is difficult to overstate the importance
of the access to copyrighted works such exemptions provide. Indeed, “Throughout our history,
the ability of individual members of the public to access and to use copyrighted materials has
been a vital factor in the advancement of America’s economic dynamism, social development,
and educational achievement.”8
Three provisions of the Copyright Act address educational uses of copyrighted materials,
exempting an assortment of activities from infringement liability.9 When it comes to digital
works, however, provisions of Digital Millennium Copyright Act (“DMCA”), a section of the
Copyright Act enacted in 1998, overshadow these exemptions and severely restrict educational
uses of digital works.10 The DMCA did not expand the scope of laws prohibiting copyright
infringement.11 Rather, it granted copyright owners new legal power to regulate, through
technological means, how others use their works. 12
The motion picture industry uses technological measures known as digital rights
management (“DRM”) systems to control how its copyrighted digital works are accessed.13 For
example, the Content Scrambling System (“CSS”) is a DRM tool used to prohibit reproduction
Williams & Wilkins v. United States, 487 F.2d 1345, 1350 (Ct.Cl. 1973), aff’d per curiam, 420 U.S. 376 (1975)
(noting that “Some forms of copying, at the very least of portions of a work, are universally deemed immune from
liability,” and holding that copying of medical journals for research purposes at a non-profit research institution
constitutes fair use); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (“From the infancy of copyright
protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s
very purpose.”).
8
H.R. REP. NO. 105-551, pt. 2, at 35 (1998).
9
See 17 U.S.C. § 107 (2000); 17 U.S.C. § 110(1) (2000); Technology, Education and Copyright Harmonization Act,
17 U.S.C.A. §§ 110(2), 112(f) (2002).
10
See Digital Millennium Copyright Act § 103, 17 U.S.C. § 1201 (2000).
11
See Jeff Sharp, Coming Soon to Pay-Per-View: How the Digital Millennium Copyright Act Enables Digital
Content Owners to Circumvent Educational Fair Use. 40 AM. BUS. L.J. 1, 39 (2002).
12
See id. (“Violating section 1201 makes one a transgressor of the anti-circumvention provisions – a criminal and
tortious act separate from copyright infringement.”).
13
See Motion Picture Association of America, DVD Frequently Asked Questions,
http://www.mpaa.org/Press/DVD_FAQ.htm (explaining that the Motion Picture Association of America’s members,
Buena Vista Pictures Distribution, Inc., Metro-Goldwyn-Mayer Studios Inc., Paramount Pictures Corporation, Sony
Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal Studios, Inc., and Warner Bros.,
use CSS to protect their copyrighted DVD content); DVD DEMYSTIFIED, supra note 1, at 151 (noting that the
content on most DVDs is encrypted with CSS).
7
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of DVDs by encrypting DVD content and preventing playback on unlicensed DVD players. 14
Many educators who use digital content for legitimate teaching purposes, for example to create
compilations of clips from different DVDs to show during class or to post short clips on the
Internet exclusively for student use, are forced to circumvent DRM systems to access that
content.15 The DMCA buttresses technological protections such as CSS with the force of law by
proscribing circumvention of DRM systems to access copyrighted works and outlawing
manufacture and distribution of technologies that primarily serve to facilitate circumvention. 16
There is no exception to the DMCA allowing DRM circumvention for educational purposes. 17
Thus, even when exceptions to the Copyright Act would permit a professor to create clip
compilations or post short clips on the Internet for student use, if doing so requires
circumvention of DRM it is illegal. 18 Creating clip compilations and presenting them in class,
distributing reproductions of movie excerpts to students, and posting short clips on the Internet
exclusively for students to access as part of the curriculum are all educational activities normally
exempted from copyright infringement liability.19 Exemption for these activities is not enough to
shield professors from legal liability, however. If the professor used DVDs protected by a DRM
system to create the clips, reproductions, or postings, and if he or she circumvented the DRM
system to access the content in order to use it, then the professor is subject to liability under the
DMCA, even though no copyright infringement occurred.20 Commercially available DVDs are
protected by CSS as well as other DRM systems, while analog formats such as 16-mm films and
14
See id.
Interview with David N. Rodowick, supra note 3.
16
See 17 U.S.C. § 1201.
17
See Sharp, supra note 10, at 39-43; see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 452-53 (2d Cir.
2001) (explaining that the DMCA does not permit a fair use defense for CSS circumvention).
18
See id.
19
See infra, Part III.
20
See 17 U.S.C. § 1201; Corley, 273 F.3d at 452-53.
15
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videotapes are not.21 These older analog systems are much less valuable to film studies
professors, however, because they are harder to use and resulting images are of much lower
quality.
II.
FILM STUDIES IN THE DIGITAL AGE
A recent addition to the academy, film studies applies the techniques of established
disciplines, including psychoanalysis, literary studies, and linguistics, to examine the art of
cinema.22 Though a small group of intellectuals recognized the significance of film as a medium
for artistic expression in the early twentieth century, 23 film studies did not surface as an accepted
area of scholarship until the 1960s.24 In the decades since, the popularity of film studies has
spread like wildfire. 25 Today, many of the foremost universities offer both undergraduate as
well as graduate degree programs in film studies.26 Technological advancement, including
development of the DVD, has fueled this growth.27 And with the emergence of cinema as the
currency of modern culture, film studies is certain to continue to develop as an important area of
scholarly endeavor. 28
21
See Mulitmedia for the Masses, supra note 1, at 91. Some videotapes are protected with copy prevention features,
such as the Macrovision automatic gain control process, which was developed to protect prerecorded videotapes in
1985, See DVD DEMYSTIFIED, supra note 1, at 196-97. Notably, the Macrovision process merely creates artifacts
when protected videotapes are copied, it does not prevent copying. See id. In addition, professional grade recording
equipment can override Macrovision protection, and such circumvention does not violate the law. See id.
22
Wikipedia, Film Theory, Oct. 27, 2005, http://en.wikipedia.org/wiki/Film#Film_theory.
23
See Ricciotto Canudo, THE BIRTH OF THE SEVENTH ART (1911); Hugo Münsterberg, THE PHOTO PLAY (1916).
24
See Wikipedia, supra note 21.
25
Nick Lacey, INTRODUCTION TO FILM, 1-2 (2005).
26
See The College Board, http://apps.collegeboard.com/search/adv_majors.jsp (indicating that 67 colleges and
universities offer undergraduate degrees in “film studies” in response to a query for accredited institutions with
“film studies” as an available undergraduate major); Graduate School Directory,
http://www.gradschools.com/programs/film_studies.htmlsee (indicating that 67 colleges and universities offer
graduate degrees in film studies); see, e.g., Yale College Programs of Study: Film Studies
http://www.yale.edu/yalecollege/publications/ycps/chapter_iv/film.html (providing information regarding Yale’s
undergraduate program in film studies); Yale University Film Studies Program,
http://www.yale.edu/filmstudiesprogram/gradprogram.html (providing information regarding Yale’s graduate
program in film studies).
27
See Russell, supra note 2, at 82-83.
28
See Lacey, supra note 24, at 1-2.
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A.
Educational Uses of DVDs by Film Studies Professors
Appreciation for how film studies professors use DVDs in the classroom is critical for
understanding the legal hurdles that impede their activities. Though the media and technologies
they use are unique, the pedagogy employed by film studies professors neatly resembles that
used by scholars in other areas. Parallels between film studies and the study of literature
illustrate this point. Scholars in both fields assign works to their students, use excerpts from
those works in class to facilitate discussion, and distribute supplementary excerpts to students
either physically, or electronically via the Internet.
Creation of clip compilations from content stored on DVDs and performance of those
compilations are the primary ways film studies professors use DVDs in the classroom.29 Film
studies professors use compilations to present and discuss relevant clips from assigned works
during lecture, just as literature professors examine novels in class by reading and analyzing
important passages. 30 Of course, screening movie clips is a more complicated endeavor than
simply reading bookmarked passages from a novel aloud. Construction of clip compilations
requires access to software to override the CSS copy prevention mechanism and create a CSSfree, navigation-restriction-free copy of the movie, such as Fast DVD Copy 4, as well as access
to editing software to extract relevant clips from that copy, such as Cinematize. Despite the
requirement for specialized software, creating compilations from DVDs is vastly superior to
using analog formats.
Clips taken from videotape or other analog formats must be copied in real time, and the
resultant copies are usually lower in quality than the originals.31 Moreover, some analog formats
do not lend themselves to creation of clip compilations whatsoever. For example, most
29
Interview with David N. Rodowick, supra note 3.
See id.
31
See DVD DEMYSTIFIED, supra note 1, at 5-6.
30
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professors do not have access to the equipment necessary to duplicate and splice clips from 16mm film. Accordingly, professors who use that format must advance manually though the
portions of a movie he or she does not wish to show, wasting valuable class time. In contrast,
software tools permit high-speed duplication of clips from DVDs, and there is no degradation in
quality when DVDs are copied.32 Reproduction quality is particularly important to film studies
professors, as they use clips to discuss intricacies such as lighting and cinematography. 33 In
addition, DVD compilations allow for instantaneous movement between clips.34 In light of these
advantages, most film studies professors use compilations made from DVDs to show clips in the
classroom, despite the legal issues surrounding DRM circumvention. 35
As a supplement to presenting segments of works in class, film studies professors
occasionally distribute excerpts of works to students as part of the course curriculum – either by
handing out physical copies or by posting content on the Internet. 36 Creating DVD copies of
excerpts is the most efficient, cost-effective way to distribute this content to students. DVDs are
faster to copy and less expensive to create than other media.37 And these five-inch plastic discs
produce higher quality, more durable copies than other formats.38 Further, DVD players are
ubiquitous on college campuses – available on computers, in libraries, and in dormitories.39 In
contrast, certain analog formats, such as 16-mm, are difficult to duplicate, and even if duplication
were possible, most students would not have access to the projectors needed to view most such
formats. While VCRs are readily accessible, creating videotape copies of movie segments for
32
See id.
Interview with David N. Rodowick, supra note 3.
34
See id. at 286.
35
Interview with David N. Rodowick, supra note 3.
36
Interview with David N. Rodowick, supra note 3.
37
See DVD DEMYSTIFIED, supra note 1, at 5-6.
38
See id.
39
See Multimedia for the Masses, supra note 1, at 90.
33
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individual students is prohibitively expensive and time consuming. For these reasons, film
studies professors depend on DVDs to create physical copies of media for students.
Professors who wish to distribute movie clips on the Internet encounter similar issues to
those faced when distributing physical copies of content. Posting analog content to the Internet
is a costly and time-consuming proposal, since it is necessary to digitize analog content before
putting it online, which necessarily reduces the quality of formats such as 16-mm film, since
some resolution is lost during digitization. Clips from DVDs, in contrast, are easily compiled
and posted to the Internet with the use of software tools such as Fast DVD Copy 4 and
Cinematize. Unsurprisingly, the majority of film studies professors who post content on the
Internet derive that content from DVDs. 40
B.
Technological Revolution and the Evolution of Film Studies
The high quality of DVD images and low cost of DVD duplication have stimulated re-
release of historical works and widespread dissemination of rare and foreign works on DVD. 41
This format has also generated new heuristic tools such as voiceover commentaries by directors
and “making of” documentaries, as well as new texts for analysis such as outtakes and alternate
endings. 42 More cinematic content is available today that at any other time in history; but there
are also greater barriers to accessing that content than ever before.
Weary of piracy and other unwelcome uses of their works, copyright owners shroud
DVD releases in CSS, an encryption and authentication scheme that prevents copying of video
files directly from DVDs.43 How CSS performs this function is critical to understanding the
40
Interview with David N. Rodowick, supra note 3.
See id.
42
See id.
43
See DVD DEMYSTIFIED, supra note 1, at 190-93.
41
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legal response to CSS circumvention. CSS does not merely block DVD copying. 44 Rather, CSS
is an encryption system that scrambles DVD content and restricts playback to licensed devices
equipped with keys for decoding the scrambled content. 45 This encryption, combined with the
terms of the CSS license, prevents copying by regulating the devices that play DVDs. 46 Put
differently, CSS restricts access to DVDs as well as duplication of them.
Copyright owners further restrict DVD access by limiting the geographic areas in which a
disc can be played through region coding. Region coding is a DRM system that restricts DVD
players from accessing content stored on DVDs from unauthorized regions.47 For example,
DVDs sold in Europe (region 2) cannot play on DVD players sold in the United States (region
1).48 Copyright owners use these access restrictions to control the timing of DVD release around
the world so that it is possible to release a movie on DVD in one region, and in theaters in
another, without running the risk that access to the DVD version of that movie will leak across
regions and interfere with theater attendance. 49
Many DVDs also contain navigation restrictions that force viewing of previews or
copyright warnings, prohibiting easy movement between different sections on a DVD.50 While
these restrictions do not inhibit access to a DVD in the same sense as CSS and region controls,
they are an impediment to DVD use. For example, if a professor wishes to show students clips
from five different DVDs that have navigation restrictions during a single class, he or she will
have to wait for the previews and copyright warnings to play on each of those discs before
showing the desired clips, thereby wasting valuable class time.
44
See id.
See id.
46
See id.
47
See id. at 187.
48
See id. at 188, table 4.9.
49
See id. at 187.
50
See DVD DEMYSTIFIED, supra note 1, at 286; WILLIAM W. FISHER III, PROMISES TO KEEP, 67-70 (2004).
45
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DVD control measures obstruct more than piracy; they also hinder the ability of film
studies professors to take full advantage of the benefits offered by DVD format. Film studies
professors must have the ability duplicate content to create clip compilations that they can show
in the classroom, and they must be able to navigate DVDs with ease in order to teach students
and avoid wasting time.51 In the absence of DRM systems and other control mechanisms, the
digital content stored on DVDs is ideal for these purposes. Indeed, the digital content stored on
DVDs is markedly more amenable to the needs of film studies professors than older analog
formats. 52 Liberated from the constraints of CSS, the digital information stored on DVDs
permits rapid duplication, without concomitant degradation in quality. 53 Once region codes are
overridden, professors can introduce students to movies never before available in their
geographic region.54 In addition, absent navigation restrictions, DVD content is more readily
searchable than analog media, permitting instantaneous navigation by title, chapter, and
timecode.55 Thus, it is unsurprising that film studies professors take advantage of widely
available, easy to use software tools that allow remixing and reproduction of DVD content,
despite the strictures of the DMCA.56
Software tools capable of circumventing the DRM systems that protect DVDs first
became available in 1999.57 Since then, developers have created numerous tools that allow users
to copy and manipulate DVD content effortlessly. For example, Fast DVD Copy 4 by Velan is a
popular program among film studies professors that allows users to duplicate CSS-protected,
51
Interview with David N. Rodowick, supra note 3.
See Multimedia for the Masses, supra note 1, at 91-92; Russell, supra note 2, at 82-83.
53
See DVD DEMYSTIFIED, supra note 1, at 190.
54
Interview with David N. Rodowick, supra note 3. See DVD DEMYSTIFIED, supra note 1, at 187-88
55
See DVD DEMYSTIFIED, supra note 1, at 286.
56
Interview with David N. Rodowick, supra note 3.
57
See Corley, 273 F.3d at 452-53 (describing the DeCSS program for decrypting CSS); DVD DEMYSTIFIED, supra
note 1, at 79-80.
52
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region-coded DVDs with ease.58 Fast DVD Copy 4 removes CSS encryption and other copy
protection mechanisms when it copies DVDs. 59 In addition, this program can also remove
region and navigation restrictions from the copies it creates. 60 Other programs with similar
functionality, such as Forty-Two DVD-VX Plus and MacTheRipper, are also available.61
Notably, manufacturers and distributors of these programs risk sanction under the DMCA. In
addition to proscribing circumvention of DRM systems, the DMCA also prohibits the
manufacture and distribution of software designed for, or with limited commercial purpose other
than DRM system circumvention.62 Indeed, the courts have enjoined several manufacturers of
circumvention software, prohibiting further distribution of their programs.63 Nevertheless, film
studies professors continue to rely on these programs, and software manufacturers continue to
produce them.
After creation of a DRM-free copy of a movie, it is possible to isolate and extract desired
movie excerpts using editing tools such as Cinematize. Cinematize allows users to extract video
and audio clips from DVDs and save them in a variety of formats compatible with popular movie
and audio editing applications. 64 The developers of Cinematize, cognizant of the liability issues
surrounding the manufacture and distribution of software capable of circumventing CSS, did not
include such a decryption feature in the program.65 Nevertheless, as advertised on the
58
See Fast DVD Copy 4, Velan, http://www.fastdvdcopy.com/.
See id.
60
See id.
61
See Forty-Two DVD-VX Plus, Kaisakura, http://www.kaisakura.com/Forty-Two_DVDVX_Plus.html;
ripDifferent.com, http://www.ripdifferent.com/phpbb2/viewtopic.php?t=1701 (providing links to mirror sites for
downloading MacTheRipper, and noting that the MacTheRipper website has been taken down pursuant to pending
copyright litigation).
62
17 USC 1201(a)(2) & (b)(1).
63
See, e.g., 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d at 1095, 1108 (enjoining plaintiff 321 Studios from
manufacturing, distributing, or otherwise trafficking in any type of DVD circumvention software).
64
Cinematize, Miraizon, http://www.miraizon.com/products/products.html.
65
Cinematize FAQ, Miraizon, http://www.miraizon.com/support/faq.html (“In accordance with the DMCA law,
Cinematize does not include any capability to decrypt encrypted DVD discs and files. Should the DMCA law be
changed or overturned in the future, Miraizon will most likely upgrade Cinematize to remove these restrictions.”)
59
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Cinematize website, “Cinematize is fully compatible with decrypted output from all the popular
[] decryption tools available.”66 By combining tools such as Fast DVD Copy 4 and Cinematize,
professors can (and do) harness the full power of the DVD format.
III.
FREEDOM TO TEACH: EXEMPTING EDUCATIONAL USES OF
COPYRIGHTED WORKS
The Copyright Act shields film studies professors from copyright infringement liability
for the educational uses of copyrighted content described above in Part II.A. As explained in
section 3 of the Digital Learning white paper and its associated modules, three provisions of the
Copyright Act protect educational uses of copyrighted content: the fair use provision, classroom
use exemption, and Technology, Education and Copyright Harmonization Act (“TEACH
Act”).67
A.
The Fair Use Provision Protects Film Studies Professors from Copyright
Infringement Liability
Originally evolved as a judicial doctrine,68 fair use “permits courts to avoid rigid
application of the copyright statute when, on occasion, it would stifle the very creativity which
that law is designed to foster.”69 As codified by Congress, the fair use provision of the
Copyright Act provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
66
See id.
See 17 U.S.C. § 107; 17 U.S.C. § 110(1); TEACH Act, 17 U.S.C. §§ 110(2) & 112(f). Section 107 codifies fair
use, § 110(1) codifies the classroom use exemption, and §§ 110(2) & 112(f) comprise the TEACH Act.
68
See Folsom v. Marsh, 9 F. Cas. 342 (CCD Mass. 1841).
69
Stewart v. Abend, 495 U.S. 207, 236, (1990).
67
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(3) the amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding
is made upon consideration of all the above factors.70
Permitting educational use of copyrighted works is central to the purpose of the fair use
provision. The introduction to § 107 identifies teaching and scholarship as examples of fair uses
of copyrighted works, and the first factor of fair use analysis focuses on whether the use in
question is “for nonprofit educational purposes.”71 Indeed, one of the motivations for
codification of the fair use doctrine was a “need for greater certainty and protection for
teachers.”72 Despite clear congressional intent to protect educational uses of copyrighted works
with the fair use provision, many questions remain regarding the extent of that protection.
The Supreme Court has yet to offer meaningful guidance regarding the application of fair
use in an educational context.73 The closest the Court has come to delineating the scope of fair
use as applied to educational uses of copyrighted works was in Williams & Wilkins Co. v. United
States, where the Court affirmed the circuit court’s ruling without opinion. 74 The circuit court
found that photocopying of medical journals by the National Institute of Health and National
Library of Medicine, and distribution of those photocopies for the use of research staff,
constituted a fair use of the journals.75 This ruling established substantial protection for noncommercial academic uses of copyrighted works in a non-profit setting.
70
17 U.S.C. § 107 (2005).
Id.
72
H.R. Rep. No. 94-1476, at 66-67 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5680.
73
See Sharp, supra note 10, at 11.
74
487 F.2d at 1347-48 (Ct.Cl. 1973), aff’d per curiam, 420 U.S. 376 (1975). Even though the decision in Williams
& Wilkins predated enactment of § 107, it remains valuable precedent, since § 107 merely codified the judicially
created fair use doctrine. See Sharp, supra note 10, at 11.
75
Williams & Wilkins Co, 487 F.2d at 1347-48, 1357. Compare with Am. Geophysical Union v. Texaco 60 F.3d
913 (2d Cir. 1994) (finding that photocopying of academic journals to assist commercial research did not qualify as
fair use, but noting that this result did not necessarily apply to photocopying done to assist researchers working on
behalf of non-profit groups).
71
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The courts have declined to extend this principle to declare all duplication of copyrighted
works for use in an educational setting fair use of those works, however. In Princeton University
Press v. Michigan Document Services, and Basic Books, Inc. v. Kinko’s Graphics Corp., the
courts found that photocopied coursepacks of copyrighted materials created by the defendant
copy shops and sold to university students were not exempt from copyright infringement liability
as fair uses of those materials.76 In reaching their decisions, the courts emphasized the
commercial aspects of the defendants’ behavior. The court in Princeton University Press
focused on the competitive advantage gained by the copy shop’s unlicensed activities,77 while
the court in Basic Books found that the coursepacks were a non-transformative, commercial use
of the plaintiff’s property.78 Taken together, Williams & Wilkins and the coursepack cases reveal
the importance of the first fair use factor relating to the purpose and character of the use. These
cases also suggest that the courts are more likely accept non-commercial, purely educational uses
of copyrighted works as fair than educational uses that have any commercial dimension.
Clip compilations created by film studies professors and used to supplement teaching
activities qualify as fair uses of copyrighted works under § 107. Professors create clip
compilations for the sole purpose of assisting them in presenting relevant material to students.
Clip compilations are non-commercial, since professors do not profit from making or performing
them, and since students cannot use classroom performances of brief clips as a substitute for
purchasing a movie they would otherwise buy. Moreover, unlike the situation in the coursepack
cases, there is no commercial middleman to profit from the creation or performance of movie
clip compilations. Even though movies are creative works at “the core of the copyright’s
76
See Princeton Univ. Press v. Michigan Document Servs., 99 F.3d 1381, 1389 (6th Cir. 1996); Basic Books, Inc. v.
Kinko’s Graphics Corp., 758 F. Supp. 1522, 1530-32 (S.D.N.Y. 1991).
77
Princeton Univ. Press, 99 F.3d at 1389.
78
Basic Books, Inc., 758 F. Supp. At 1530-32.
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protective purposes,” 79 film studies professors extract short, usually scene length clips from
movies,80 taking and performing no more than is necessary to supplement their teaching
activities. 81 Indeed, one court specifically cited “the preparation by a film studies professor of a
[compilation] containing two scenes from different movies in order to illustrate a point in a
lecture on cinematography” as an example of a use that likely qualifies as fair under § 107.82
Similarly, copies of excerpts made by film studies professors and distributed to students,
either as physical media or electronically via the Internet, should qualify for exemption from
copyright infringement liability as fair uses. Such copies are more akin to the photocopies of
medical journals at issue in Williams & Wilkins than the coursepacks at issue in Princeton
University Press and Basic Books. Educators, not middlemen, make these copies for a purely
educational purpose, without any commercial implications. Professors do not profit from
making copies of movie excerpts, and the commercial market for movies is not harmed, as
students are highly unlikely to purchase a copy of a movie just to gain access to a short clip they
are assigned to analyze. Finally, professors take no more of a movie than necessary to illustrate
the lesson they are trying to communicate when they copy discrete scenes. The fair use
provision provides more extensive exemptions from copyright infringement liability than any
other provision in the Copyright Act. The classroom use exemption and TEACH Act
supplement the fair use provision, however, by providing additional, concrete exemptions from
legal liability for educational uses of copyrighted works.
79
Campbell v. Acuff-Rose Music, Inc., 510 US 569, 586 (1994).
Interview with David N. Rodowick, supra note 3.
81
See Campbell, 510 US at 590.
82
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 322 (S.D.N.Y 2000), aff’d sub nom. Universal
City Studios, Inc. v. Corley, 273 F.3d 429, 452-53 (2d Cir. 2001).
80
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B.
The Classroom Use Exemption Shields In-Class Performances of Copyrighted
Works from Infringement Liability
Congress designed the classroom use exemption to insulate performances and displays of
copyrighted works that take place during the course of “face-to-face teaching activities” from
infringement liability. Section 110(1) of the Copyright Act reads:
Notwithstanding the provisions of section 106, the following are not infringements of
copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face
teaching activities of a nonprofit educational institution, in a classroom or similar place
devoted to instruction, unless, in the case of a motion picture or other audiovisual work,
the performance, or the display of individual images, is given by means of a copy that
was not lawfully made under this title, and that the person responsible for the
performance knew or had reason to believe was not lawfully made;83
Classroom performances of movie clip compilations by film studies professors will qualify for
this exemption so long as the statute’s requirements regarding the nature of the teaching activity,
its location, and the legal status of the performed material are satisfied. The use of movie clips in
class to supplement a film studies lecture easily satisfies the “face-to-face teaching activities”
requirement, since lectures take place in the presence of students, and since the teaching
activities encompassed by the statute include a “very wide variety of subjects,” provided the
purpose of the performance is educational, not recreational.84 In addition, the location
requirements are easily satisfied, as most universities are non-profit educational institutions, and
most lectures take place in dedicated classrooms or lecture halls.85 The final requirement,
regarding the legal status of the copy of the work performed is the most important issue. While
individual excerpts played from commercial DVDs meet this requirement,86 most professors
perform excerpts or clip compilations they create. Such excerpts and compilations are likely
83
17 U.S.C. 110(1) (2005).
See H.R. Rpt. 94-1476.
85
See id.
86
See id.
84
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legal copies, however, since they should qualify as fair uses.87 Accordingly, § 110(1) of the
Copyright Act should exempt film studies professors from copyright liability for performing
movie excerpts in class, including excerpts or compilations made by professors as permitted by
fair use.
C.
The TEACH Act May Permit Transmission of Movie Excerpts to Students via the
Internet
The TEACH Act exempts film studies professors from copyright infringement liability
for posting movie excerpts online, provided professors take measures to comply with the
requirements of that Act.88 The TEACH Act promotes the use of advanced digital transmission
technologies, including the Internet, for educational purposes.89 In particular, the TEACH Act
was formulated to facilitate “new hybrids of traditional classroom education combined with
online components,” permitting professors to incorporate web-based learning into their
curricula.90 The TEACH Act provides protection from copyright infringement liability
independent of and supplemental to that supplied by the fair use doctrine.91
The TEACH Act permits performance, via digital transmission, of “a nondramatic
literary or musical work or reasonable and limited portions of any other work,” including
movies, in specific educational contexts.92 The short excerpts used by films studies professors
should satisfy this requirement for the reasons discussed above in Part III.A.: film studies
87
See Part III.A., supra.
17 U.S.C. §§ 110(2) & 112(f) (2005).
89
Sen. Rpt. 107-31, at 3 (June 5, 2001). House Rpt. 107-687 contains a nearly identical discussion of the TEACH
Act, however, when both the House and Senate reports state the same proposition, citations are limited to Sen. Rpt.
107-31 for convenience.
90
Id. at 4.
91
Id. at 14-15.
92
See 17 U.S.C. § 110(2); Sen. Rpt. 107-31, at 11. As a threshold matter, the TEACH Act limits exemption to
schools accredited under state licensing regulations, and requires that only legally made copies or phonographs be
performed, and that the performed material was not created specifically for use as instructional matter to be
transmitted via a digital network – requirements that film studies professors should easily satisfy. 17 U.S.C. §
110(2); see supra; see also Section 3.1.2 of the Digital Learning white paper.
88
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professors post brief clips of films students would not otherwise purchase for students to
analyze.93
To qualify for protection under the TEACH Act, the transmission of a performance must
be part of mediated instructional activity, directly related to instruction, and analogous to the
type of performance that would take place in a classroom setting.94 Film studies professors’ use
of movie excerpts also fits within this requirement. Posted excerpts serve to supplement
classroom lessons, and viewing such excerpts is a regular part of classroom activities.
Importantly, the TEACH Act does not permit performance or display of media that students
would usually otherwise purchase or acquire for their independent use and retention, such as
textbooks for use during the entire duration of a course.95
The TEACH Act attempts to balance the interests of educators and copyright owners by
making copyrighted material available on the condition that steps are taken to ensure protection
of the copyright owner’s interests. In this regard, the Act requires that, to the extent technology
permits, reception of the transmitted performance is limited to students officially enrolled in the
related course.96 The Act also mandates that schools institute copyright policies that inform staff
and students of U.S. copyright law and provide notice to students that transmitted materials may
include copyrighted works.97 In addition, the Act requires schools to take technological
measures to prevent retention of works in accessible form by students beyond the class session,
and to prevent further dissemination of transmitted works.98 Finally, the Act forbids schools
from interfering with technological measures used by copyright owners to prevent such retention
93
See Sen. Rpt. 107-31, at 7-8
See id. at 9.
95
See Sen. Rpt. 107-31, at 10.
96
17 U.S.C. § 110(2)(C).
97
17 U.S.C. § 110(2)(D)(i).
98
17 U.S.C. § 110(2)(D)(ii)(I)
94
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and dissemination.99 Professors will have to comply with all of these requirements in order to
fall within the exemption. Compliance with the last requirement, forbidding interference with
technological measures used by copyright owners to protect their works, may pose difficulties
for film studies professors who typically remove CSS protection from the excerpts they
distribute. However, if it is impossible to distribute works without disrupting CSS, and
professors take other measures to protect the works they distribute online, the TEACH Act may
still exempt them from copyright infringement liability. Moreover, even if professors cannot
comply with all of the requirements of the TEACH Act, they will still have a persuasive fair use
claim, so long as they comply with the TEACH Act to the greatest degree possible.
IV.
LEGAL LOCKDOWN: RESTRICTING EDUCATIONAL USES OF DVDs WITH
THE DMCA
Congress ratified the DMCA in reaction to the perceived plague of digital piracy. 100
Originally touted by legislators as “balanc[ing] the interests of copyright owners and users of
copyrighted works,” 101 in application the DMCA severely restricts film professors’ access to
copyrighted works.102 The DMCA prohibits circumvention of DRM systems to access digital
content, and outlaws technologies designed to enable such access, effectively barring many
educational uses of DRM-protected digital media.
A.
Access Denied: The DMCA’s Anti-Circumvention Provision
The DMCA forbids film studies professors from circumventing CSS to create clip
compilations for classroom performance, or scene excerpts for use by students, from DVDs. The
statute provides, “No person shall circumvent a technological measure that effectively controls
99
17 U.S.C. § 110(2)(D)(ii)(II).
144 Cong. Rec. H7093, H7098 (Aug. 4, 1998).
101
Id. at H7094.
102
17 U.S.C. § 1201 (2000).
100
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access to a work protected under this title.”103 “[A] technological measure ‘effectively controls
access to a work’ 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.”104
The CSS encryption and authentication scheme used to prevent copying of DVDs plainly
satisfies this definition. The data contained on CSS-protected DVDs is scrambled, and only
licensed devices equipped with the keys necessary for unscrambling disc contents can access and
perform the information stored on these discs.105 Indeed, “One cannot lawfully gain access to
the keys except by entering into a license… or by purchasing a DVD player or drive containing
the keys pursuant to such a license. In consequence, under the express terms of the statute, CSS
‘effectively controls access’ to copyrighted DVD movies.”106 The courts have universally found
that CSS is a technological measure that effectively controls access to DVDs.107 Consequently,
film studies professors who circumvent CSS without permission from the owner of the
copyrighted work accessed are subject to liability under the DMCA.
103
104
17 U.S.C. § 1201(a)(1)(A) (2000).
17 U.S.C. § 1201(a)(3)(B) (2000). Problematically, the statute does not define the term “access.” The definition of this
term is implicit in the nature of digital works, however. It is impossible to perceive digital works without accessing them first.
While human beings can perceive analog works directly, reading text printed on a page, for example, digital works contain data
that is imperceptible to humans and must be accessed and converted to be perceived. See R. Anthony Reese, The Law and
Technology of Digital Rights Management: Will Merging Access Controls and Rights Controls Undermine the
Structure of Anticircumvention Law?, 18 Berkeley Tech. L.J. 619, 633-34 (2003). Accordingly, the scope of the term
access likely includes “any act by which [a] work is made perceptible.” Id. at 628; see also Jane C. Ginsburg, From Having
Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, in U.S. Intellectual
Property 2 (Hugh Hansen ed., 2000), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract<uscore>id=222493 (“Every act of perception or of materialization
of a digital copy requires a prior act of access.”); id. at 12 (“Thus, ‘access to the work’ becomes a repeated
operation; each act of hearing the song or reading the document becomes an act of ‘access.’”). Thus, a technological
measure that effectively controls access to a work is one that “requires the application of information, or a process or a treatment,
with the authority of the copyright owner, to [perceive the work].” See 17 U.S.C. § 1201(a)(3)(B).
105
See DVD DEMYSTIFIED, supra note 1, at 190-93.
Reimerdes, 111 F. Supp. 2d at 317-18.
107
See, e.g., Corley, 273 F.3d at 452-53 (“CSS [is] computer code that prevents access by unauthorized persons to
DVD movies…. In its basic function, CSS is like a lock on a homeowner's door, a combination of a safe, or a
security device attached to a store's products.”); 321 Studios. 307 F. Supp. 2d at 1095 (“CSS is a technological
measure that both effectively controls access to DVDs and effectively protects the right of a copyright holder.”).
106
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Copyright provisions exempting educational uses of copyrighted materials from
infringement liability, including fair use, do not shelter film studies professors from liability for
circumvention of CSS under the DMCA. The DMCA created a cause of action for
circumvention of technological measures that effectively control access to copyrighted works,
distinct from causes of action for copyright infringement.108 Accordingly, while fair use, the
classroom use exemption, and the TEACH Act exempt professors from copyright infringement
liability, these provisions do not provide any defense against liability for circumvention. 109 The
courts are clear on this point, “If Congress had meant the fair use defense to apply to [actions
under the DMCA’s anti-circumvention provisions], it would have said so.”110 One court even
addressed the limitations placed on educational use of DVDs by the DMCA, unsympathetically
declaring:
[T]he DMCA does not impose even an arguable limitation on the opportunity to make a
variety of traditional fair uses of DVD movies, such as commenting on their content,
quoting excerpts from their screenplays, and even recording portions of the video images
and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a
monitor as it displays the DVD movie. The fact that the resulting copy will not be as
perfect or as manipulable as a digital copy obtained by having direct access to the DVD
movie in its digital form, provides no basis for a claim of unconstitutional limitation of
fair use.111
Cognizant of the potential for the DMCA to inhibit fair use of copyrighted works,
Congress included a “fail-safe” provision in the statute.112 Under this provision, the Librarian of
Congress is empowered to waive the DMCA’s anti-circumvention provision for three-year
periods with regard to specific classes of works, for “adversely affected” users who could not
108
See Sharp, supra note 10, at 39-40.
See id.
110
Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 219 (S.D.N.Y. 2000). While the legislative
history of the DMCA speaks to the importance of fair use, see 144 Cong. Rec. at H7093-94, the statute itself makes
no mention of a fair use defense to actions under the DMCA, see 17 U.S.C. § 1201, and the courts have refused to
read such a defense into the text of the statute, see 82 F. Supp. 2d at 219.
111
Corley, 273 F.3d at 459.
112
See 17 U.S.C. § 1201(a)(1)(B) & (C) (2001).
109
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otherwise engage in non-infringing uses in light of the DMCA.113 The Librarian has previously
rejected application for exemptions for circumvention of CSS in order to engage in fair uses of
DVD content, however.114 Thus it is unlikely film studies professors will gain legal right to
circumvent CSS for educational use through this provision.
B.
Software Ban: The DMCA’s Anti-Trafficking Provisions
In addition to outlawing individual acts of CSS circumvention, the DMCA also prohibits
the manufacture and trafficking of software that primarily functions to circumvent CSS or other
DRM systems.115 The DMCA sets forth these so-called “trafficking provisions” in two parts.
The first states:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in
any technology, product, service, device, component, or part thereof, that-(A) is primarily designed or produced for the purpose of circumventing a technological
measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a
technological measure that effectively controls access to a work protected under this title;
or
(C) is marketed by that person or another acting in concert with that person with that
person's knowledge for use in circumventing a technological measure that effectively
controls access to a work protected under this title.
The second is largely identical, substituting the phrase “protects a right of a copyright owner” in
place of the phrase “controls access to a work.”
The courts have employed both of these provisions to sanction parties engaged in the
manufacture and trafficking of software that circumvents CSS.116 Continued litigation against
those who supply circumvention software threatens the availability of these products, and thus
113
See id.
Determination of the Librarian of Congress, 37 C.F.R. Part 201 (2003).
115
17 U.S.C. §§ 1201(a)(2) & (b)(1) (2000).
116
See, e.g., 321 Studios, 307 F. Supp. 2d at 1095, 1108 (enjoining plaintiff 321 Studios from manufacturing,
distributing, or otherwise trafficking in any type of DVD circumvention software, and finding that CSS is both an
access control and a rights control).
114
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the ability of film studies professors to make any use of DVDs, lawful or not.117 Even if
Congress, the courts, or the Librarian of Congress were to establish an exception to the DMCA
permitting circumvention of CSS for educational uses, the strictures of the trafficking provisions
might eliminate the supply of circumvention software, rendering circumvention infeasible for all
but the most technologically savvy faculty. Indeed, one court suggested that Congress intended
“to leave technologically unsophisticated persons who wish to make fair use of encrypted
copyrighted works without the technical means of doing so.”118 While it is likely that some
circumvention technologies will always be available “underground,” such software may be
harder to come by and more difficult to use than the products currently available on the market,
further restraining DVD use by film studies professors.119
V.
CONCLUSION
Film studies professors rely on DVDs to expose their students to the art of cinema. Many
of these professors continue to circumvent CSS and use DVDs in the classroom despite
awareness of the potential for legal ramifications for such use. The reward of access to the
volumes of content available on DVD, and the ease with which that content can be reproduced
and manipulated, is apparently worth the risk. Further, while copyright owners carry a big stick
in the form of the DMCA, they are reluctant to use it to stifle education. Thus universities turn a
blind eye to DMCA violations perpetrated by their faculty, and professors continue to use DVDs
for pedagogical purposes.
Despite this apparent uneasy equilibrium, it may not always be so. If copyright owners
continue to prosecute those who manufacture and distribute software tools for circumventing
CSS, film studies professors may find themselves without the implements necessary for using
117
See Sharp, supra note 10, at 41.
Reimerdes, 111 F. Supp. 2d at 324.
119
See Sharp, supra note 10, at 41.
118
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DVDs. Alternatively, copyright owners could change course and begin pursuing professors who
violate the DMCA, perhaps to send a message to students. Action must be taken to legalize
educational uses of DVDs to avoid future disaster.
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