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DMCA Exemption Hearings Draw to a Close

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Representatives of the Copyright Office heard testimony regarding a range of proposed exemptions to the DMCA that would sanction de-encryption for remix video, student projects and instruction in disciplines beyond media studies.

Today was the last day of hearings on proposed extensions and expansion of exemptions to the Digital Millennium Copyright Act for classroom uses of copyrighted media. The Copyright Office, which grants three-year exemptions to the law, heard four days of testimony regarding a range of proposed exemptions and will issue a decision in October 2009. The exemptions under consideration include an extension of the current dispensation allowed for media studies instructors to break the copy-protection in DVDs. A proposed expansion of the educational exemption would permit students  to also break encryption in order to use video clips for the purposes of "video essays" or media analysis and would extend the current exemption to instructors in other disciplines as well. Among the exemptions proposed by the Electronic Frontier Foundation was an allowance for the makers of remix videos to rip media from DVDs in order to create "fan vids." Complete audio transcripts of the hearings are available online.

Representatives of the copyright and DRM industries expressed little opposition to continuing the current exemption for media studies, but requested narrowing, rather than expanding, the range of circumstances covered. The proposal to extend the exemption to student work proved particularly volatile from the perspective of the MPAA, which voiced its concern that allowing students to break CSS encryption would make it a norm rather than an exception. By far the most amazing event of the hearings came when the MPAA's Fritz Attaway and Dan Seymour argued that, while the industry agreed that movie clips are an important teaching tool, reasonable alternatives are available that do not require breaking CSS. To prove their point, Seymour showed a video demonstrating a method of creating a compilation of video clips by aiming a camcorder at a flat screen monitor in a darkened room and recording a series of clips in sequence. The video, which has subsequently been circulated online, was met with incredulity and derision by commentators both in the hearing and in online forums. Although they did their best to defend the viability of this method of analogue capture, industry representatives refused to address the less ludicrous alternative of software-based analogue capture using programs such as Snagit or Snapz.

The USC School of Cinematic Arts was mentioned briefly during the testimony by Peter Decherney, who responded to claims by the MPAA that it was in talks with the school to create a specially selected library of clips that would be licensed for use in film studies classes. Even if it were not an absurd proposition pedagogically, this permission-based alternative to the core fair use protection on which media teaching (and indeed Critical Commons itself) is predicated, however, remains hypothetical and was dismissed as irrelevant to the current exemption hearings. Of particular significance to the work of USC's Institute for Multimedia Literacy was an impassioned testimony by Renee Hobbs, who spoke on behalf of media literacy educators. Echoing many of the IML's core commitments to developing analytical sophistication among students who function as both producers and critical consumers of media, Hobbs argued that it was imperative for students to work with audiovisual materials as part of the process of thinking critically about media at every level including K-12 up through higher education. Hobbes closed by quoting Umberto Eco: "The language of the image must be a stimulus for critical reflection not an invitation to hypnosis."