In this video we're gonna talk about anti circumvention rules for video. As you already know Ann, many if not most DVDs that are sold today come encrypted with software that prevents someone from making copies and distributing them. Without paying for additional copies. It a way the content providers protect the content on the DVDs. So it makes it impossible, or at least difficult for the buyer to impinge on any of the rights holder's exclusive rights, distribution, etc. But it also makes it impossible for the buyer to exercise any of the exceptions to these exclusive rights, exceptions like fair use, etc. So we'll start from the point where the educator has looked at the four factors of fair use, which we've discussed in another video and concluded that their use is a fair use. So what is that educator to do if he or she wants to reproduce part of a movie, picture, DVD for educational use, in teaching film for example? But the DVD carries rights protection software to prevent that copying. What if a student or an artist wants to copy portions of a movie to use in another film? And those portions would be considered a fair use. So, let's look at some of the rules around anti circumvention. Those can be found in section 1201 and we'll talk first about 1201 A1A. And that is that no person shall circumvent a technological measure that effectively controls access to a work protected under this title. So that's the broad rule that we have and there are some definitions within that. One of them is circumvent a technological measure which means to descramble a scrambled work. To decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner. So lots of no, no, no, no. And 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 process or treatment with the authority of the copyright owner to gain access to the work. So we're actually probably pretty familiar with some of these technological measures even if we don't quite know that that's what we call them. So there are thankfully a few exceptions to this general rule and statute. And they're mostly there for security and also for research purposes. So one of them worth mentioning is a exception that allows staff at a nonprofit library, worth focusing on that nonprofit piece. Archives or educational institutions to break encryption, quote solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title. And that's section 1201 a.d. And the idea there is that you can de encrypt a copy if you need to be able to do that in order to determine if you wanna actually purchase that work. But you can't basically then use that de-encrypted copy for other purposes. So you couldn't make additional copies. You couldn't loan that out to others either. So it's a nice exception, but it's a pretty narrow exception. In addition, the library that takes advantage of that exception has to be open to the public and that includes researchers that are specialized in a particular field. But are not among the library's normal patrons, so if you had a corporate library for example, only open to members of the corporation, that wouldn't qualify. It would have to be open even to researchers from other areas. So what happens when you've got these lawful activities that fair use allows And you run smack dab up against encryption in the work. So, the section of the Copyright Act says that it doesn't completely nullify fair use, but the courts have not looked favorably on DVD decryption. So luckily we have a few other things that we can, we can look to for anti circumvention. >> Right, and there's some good news bad news here. The good news is that Congress thought of that, and provided for a process for dealing with the fact that there might need to be times when a person needed to employ fair use and would need to descramble, and deencrypt a DVD. On the other hand, there's some bad news. The process for granting the exceptions is a time consuming, complicated process, and the exceptions granted only last for three years. >> [LAUGH] >> So it is Administrative to the nth degree. [LAUGH] >> Not uncommon, in government processes. >> So here generally is how the process of granting exceptions works. The prohibition on de-encryption does not apply to users, of a particular class of work, if such persons are or are likely to be in the succeeding three year period adversely effected by the prohibition, and their ability to make non-infringing uses of that particular class of works under this title. You've gotta identify a type of work and you've gotta say in the next three years, we're gonna need to make non-infringing uses that will necessitate decrypting the DVD. Every three years, the registers of copyrights solicits inputs from the public, and then makes recommendations. To the Librarian of Congress on types of users and types of works that would benefit from the exceptions. And it seems like as soon as they grant the exceptions they have to start all over again. [LAUGH] The exceptions are granted for that three year period only. If there is desire to extend them, they've got to be recertified, as it were. If you're working with video there are two exceptions that are in force right now, can't say about the long term, but for right now. There is one for motion picture excerpts for commentary, criticism, and educational uses. That is applicable when there is no other way to access the material, when the user is circumventing content scrambling systems on a DVD only. It's available for use in non-commercial videos, documentary films, non-fiction multimedia, eBooks offering film analysis and for educational purposes in film studies or other courses requiring close analysis of film by college and university faculty college and university students and kindergarten through 12th grade educators. >> So it's a good exception but it's also a rather narrow exception. It's aimed at educator, so that's a good thing, and gives them flexibility, but it's pretty narrow in it's scope. >> Right, and it does not include kindergarten through 12th grade pupils. Only the educators. And in addition what they call, the statute calls, fictional films. Feature films are not included in the exception, which of course cuts out a lot of the work in film that's done. There's also an exception in force currently for captioning and descriptive audio. This allows the circumvention of technology for DVDs in order to do research and development for the creation of video or audio players. For visually impaired people or hearing impaired people. Again, a very limited exception. It's only for this sorta R&D activity. And it also does not include media, other media like Blu-Ray. Only the DVD CSS combination. There are other exceptions in force right now but we'll spare you the details on those [LAUGH]. At the time we're filming we're moving towards the end of one of those three year periods and the register of Copyrights has recently gathered recommendations for a new round of exceptions. >> So it sounds like the rule of thumb here is to A, be aware that there is this rule making process, so if we had listeners who are interested in really pursuing this, have some ideas of something that might be eligible for an exception, there is a way for that to happen. >> Right. >> But the exceptions only last three years. So it's worth checking out, look at the Library of Congress Copyright offices, website, to really see what is enforced before relying on one of these rule making exceptions. >> Yeah. It is a very cumbersome process. It's very limited. It is intended to respond to changes in technology, but it does so in a relatively slow manner. However, in certain circumstances, these exceptions can be very helpful, so it's useful to know about them at the least. >> Yes that is true. >> And thank you for listening and watching.
