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Copyright

DMCA - For Faculty and Students

Digital Millennium Copyright Act of 1998

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

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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 for instructional purposes, but cannot due to the TPMs. The DMCA restricts the circumvention of TPMs. Every three years, however, the Copyright Office re-evaluates the impact of the law and responds by issuing special exemptions. In 2015 faculty have new exemptions addressing the use of motion pictures. (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, 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, Tegrity, 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 2015 Exemptions table below lays out the most relevant 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.
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  • For full details see the Library of Congress Copyright Office website: "2015 Rulemaking on Exemptions ..." and
  • For more information about the use of media in classes see the “Media in the Classroom” tab in this guide.
  • 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.”
  • (DMCA - Chapter 12, Sections 1201 and 1202, updates the Copyright Act of 1976.)

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2015 DMCA Exemptions Table

The table is a partial list of new DMCA exemptions most applicable to faculty and students. For the complete list of classes of works and exemptions, refer to the Copyright Office Final Rule and Register's Recommendation. Other classes of works include: literary works distributed electronically with read-aloud function, computer programs, video games, and literary works of data connected to implanted medial devices.

2015 Exemptions
Apply To:
Motion Pictures including television shows and videos,

lawfully made and acquired
Purpose

Amount
Criticism and comment

Short portions
Lawful Uses Type of Circumvention Allowed
Educational purposes by college and university faculty and students
 
Screen capture circumvention authorized for software that reproduces motion picture after content has been lawfully acquired and decrypted.
Educational purposes by college and university faculty and students in Film Studies or other courses requiring close analysis of film and media excerpts Circumvention authorized - when one reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

Applies to: DVD protected by CSS, Blu-ray disc protected by AACS, a digital transmission protected by TPMs
Documentary film Screen capture circumvention authorized with software that reproduces motion picture after content has been lawfully acquired and decrypted.
Documentary Film Circumvention authorized when one reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

Applies to: DVD protected by CSS, Blu-ray disc protected by AACS, A digital transmission protected by TPMs
MOOCS – Educational purposes
 
Faculty of massive open online courses,
  • offered by accredited nonprofit educational institutions
  • to officially enrolled students
  • through online platforms for educational purposes (Platforms may be operated for profit) where MOOC provider limits transmissions to the extent technologically feasible
  • institutes copyright policies
  • provides copyright information to faculty, students and staff
  • applies technological measure that reasonably prevent unauthorized further dissemination to others or retention of the work for longer than the course session by recipients

Screen capture circumvention authorized with software that reproduces motion picture after content has been lawfully acquired and decrypted.

Circumvention authorized for film studies classes or other course requiring close analysis of film and media excerpts, when one reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

Applies to: DVD protected by CSS, Blu-ray disc protected by AACS, a digital transmission protected by a TPMs

Non commercial videos

(including videos produced for a paid commission if the commissioning entity’s use is noncommercial)
Screen capture circumvention authorized with software that reproduces motion picture after content has been lawfully acquired and decrypted.
Non commercial videos

(including videos produced for a paid commission if the commissioning entity’s use is noncommercial)

Circumvention authorized for film studies classes or other course requiring close analysis of film and media excerpts, when one reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content;

Applies to: DVD protected by CSS, Blu-ray disc protected by AACS, a digital transmission protected by a TPMs

 

The DMCA Rules 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:

Special Note: A 2015 decision from the U.S. Court of Appeals 9th Circuit held that "the DMCA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law." Full court opinion in Lenz v Universal Music

 

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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