New Media Rights to file comments supporting key Anti-Circumvention exemptions

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today's theme is "Owners Rights" and the upcoming Copyright Anti-Circumvention Exemption Proceeding.

Comments to the Copyright Office's current Anti-Circumvention exemption proceeding are due February 6, 2015.  As in past years (2012, 2009), New Media Rights will be offering direct evidence of the creators and consumers we work with who rely on these exemptions.  Here's a brief preview of our comment.

One thing remains constant in the DMCA Anti-Circumvention exemption proceedings: an enormous output of time and energy by legal clinics, nonprofits, and others every three years in pursuit of broad range of worthy, but narrow exemptions.  Most of these exemptions discuss why a particular use is not otherwise illegal, and should be exempted from violating federal law under the Anti-Circumvention provisions.  We maintain that an elegant way to improve the provisions, and allow otherwise lawful uses without requiring such a tremendous use of resources, is to simply exempt all uses that are otherwise lawful.

In this proceeding we will be specifically arguing for the right of a) remix creators and filmmakers to circumvent technological protection measures to reuse video in fair use, as well as b) the right of  individuals to take control of the apps and services they use on their mobile devices.

Our 2015 comment will support expansions of these recommendations in important ways - including arguing that jailbreaking should also apply to tablets and that the bypassing of anti-circumvention technology should include Blu-Ray, as well as DVD and online sources.

Jailbreaking of smartphones and tablets

Jailbreaking is essential to ensure competition and innovation.  Jailbreaking enables alternative app marketplaces, which provide a safety valve to censorship by OS makers, wireless carriers, and device manufacturers, who use their gatekeeping power to control what apps and services we can access.  In addition, jailbreaking allows for increased customization that allows consumers to address security and privacy concerns instead of being forced to wait for the OS maker to address the issues.  These exemptions would allow consumers to continue to enjoy the benefits of jaibreaking their smartphones to lawful software, and extend these benefits to tablets. 

Accessing video to reuse footage from Blu-Ray, DVDs and online sources

This exemption is meant to allow creators, remixers, and vidders the ability to bypass DVD encryption technology to obtain high quality footage for the videos they create.  The exemption extends only to videos that fall within the bounds of fair use and thus, this exemption is not as broad as many copyright holders argue.  This exemption allows those who create and share videos that reuse existing content to defend themselves under fair use.  Our comment includes the stories of creators who represent the wide array of social, political, and cultural commentary that this exemption would protect.

We also argue that it is necessary to allow circumvention to provide access to higher quality footage, which is both demanded by viewers and necessary to communicate a creator’s message.  Many of the already legal methods to obtain the footage – including screen capture or analog capturing – are deficient. 

As more content becomes available solely online, it becomes more important for internet users and creators to be able to lawfully repurpose and reuse this source of material.  There is an enormous amount of content not currently available on DVD.  To ensure the basic right to post videos regarding current social events or hotly debated political topics, it is essential allow this exemption to legally access the most up-to-date footage.  Having to wait for the material to come to DVD would cause many videos to be stale or wholly irrelevant.

Our comments will also include support for a filmmaking exemption as well as ask for other key expansions in exemptions particularly important to the clients we serve.  In sum, our comment represents our direct experience with numerous individual examples that rely on critical exemptions.  The exemptions will not only benefit consumers and creators, but are in harmony with the spirit, purpose, and law of the Copyright Act.