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Copyright Resources

DMCA - For Faculty and Students

Digital Millennium Copyright Act of 1998
(Chapter 12, Sections 1201 and 1202, updates the Copyright Act of 1976.)

The DMCA was written to address intellectual property in the digital environment.

Anticircumvention under the DMCA

  • It is illegal to circumvent or decrypt technological protection measures (TPMs) that protect digital intellectual property  even if your use is a fair use.
  • It is also illegal to manufacture and to traffic any technology or service that is designed to circumvent a TPM. 
  • The DMCA prohibits removing the copyright management information contained on a copyrighted work.

How does the DMCA affect my teaching?

Many educators wish to copy, convert or transcode videos that are locked by TPMs for instructional purposes yet the DMCA restricts this activity. Every three years, however, the Copyright Office re-evaluates the impact of the law and tries to respond by issuing special exemptions. In 2012 faculty have new exemptions addressing the use of motion pictures on DVD and from online distribution services. (Definition of a motion picture)

General parameters are these:

  • Circumvention is allowable only for the purposes of criticism and commentary.
  • Only “short portions” may be copied.

Use of Screen Capture Software

The DMCA exemptions now address more fully the use of screen capture software. It is not always clear whether the screen capture process uses circumvention techniques or whether it captures video after the decryption process which is the legal approach. In the event that the capturing is circumventing, for the first time the DMCA exemptions allow short portions of the above works to be copied for comment and criticism for educational purposes by university faculty and by college students as well as K-12 educators. Commonly used screen capture softwares are Camtasia, Jing, SnagIT, Captivate or Screencast-o-matic. All have their limitations.

When Screen Capture Software isn’t Good Enough

The DMCA permits the circumvention of TPMs when screen capture software does not give the level of quality needed for the kind of criticism or comment. This exemption applies to film studies classes or any class doing film and media analysis. University faculty, college students and K-12 educators may take advantage of this exemption.

The 2012 Exemptions table below lays out the current permitted circumventions, who is entitled to use them and for what purposes.  Faculty who teach online will also need to consult the TEACH Act when using video material.  

Definition of motion picture: “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.”

2012 DMCA Exemptions Table

 

2012 Exemptions Apply to:

Motion pictures on DVD, (lawfully made and acquired) that are protected by CSS (content scrambling system).


Note: Exemption does not apply to Blu-ray

Motion pictures, (lawfully made and acquired) via online distribution services, protected by various TPMs

Motion pictures on DVD, lawfully made and acquired) that are protected by CSS (content scrambling system).

Note: Exemption does not apply to Blu-ray

Motion pictures, lawfully made and acquired via online distribution services, protected by various TPMs


 

Amount that may be copied:  

Short portions only

Short portions only

Lawful Purpose in these instances:

 criticism or comment in the following instances:
(i) in noncommercial videos;
(ii) in documentary films;
(iii) in nonfiction multimedia ebooks offering film analysis
(iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten – 12th grade educators.

 

 criticism or comment in the following instances:
(i) in noncommercial videos;
(ii) in documentary films;
(iii) in nonfiction multimedia ebooks offering film analysis;
(iv) for educational purposes by college and university faculty, college and university students, and kindergarten through 12th grade educators.

Permitted action:

circumvention permitted

Screen capture software may or may not use circumvention techniques, however a circumvention is permitted under these limited circumtances.

When circumvention or screen capture apply:

 

…where the person engaging in circumvention believes …that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software …are not able to produce the level of high-quality content required to achieve the desired criticism or comment …

…where the circumvention, if any, is undertaken using screen capture technology that is reasonably represented and offered to the public as enabling the reproduction of motion picture content after such content has been lawfully decrypted,  ... when the person engaging in the circumvention believes …that the circumvention is necessary to achieve the desired criticism or comment…

 

DMCA for Internet Service Providers

When acting as a service provider, the University must abide by the legal requirements of the DMCA. The DMCA stipulates that “On receipt of an acceptably complete claim of infringement, DMCA (512) (g) requires [the university] to direct prompt removal of material or removal of all local or wide-area network access to the material or activity claimed to be infringing.” Whether the claim is accurate or not, the alleged infringing material will be taken down. The infringer has recourse to file a counter claim.

For full details of the process see the University of Missouri “Rules and Resources for Online Intellectual Property - Guidelines for DMCA Agents”

Other valuable links:

Consequences and Liability

The consequences of violating this law are severe depending upon whether infringement is found to be willful or not. Actual or statutory damages may apply. See DMCA Civil and Criminal remedies, Section 1203.

University employees have some protection under the law (Section 1203(c)(5)).

Innocent violations:

(A) IN GENERAL- The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation.

(B) NONPROFIT LIBRARY, ARCHIVES, OR EDUCATIONAL INSTITUTIONS- In the case of a nonprofit library, archives, or educational institution, the court shall remit damages in any case in which the library, archives, or educational institution sustains the burden of proving, and the court finds, that the library, archives, or educational institution was not aware and had no reason to believe that its acts constituted a violation.

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