UCI IP, Arts & Tech Clinic

Intellectual Property, Arts, & Technology Clinic

Independent filmmakers file amicus brief in second constitutional challenge to Digital Millenium Copyright Act

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IPAT Clinic faculty, students, and members of Kartemquin Films testifying at DMCA §1201 hearing conducted by the U.S. Copyright Office in May 2015.

Yesterday, the UCI Intellectual Property, Arts, and Technology Clinic submitted an amicus brief on behalf of long-time clients the International Documentary Association and Kartemquin Films in a federal appellate court in Washington, DC in an important copyright case. In Green v. United States Department of Justice, a pair of security researchers are challenging the constitutionality of Section 1201 of the Digital Millennium Copyright Act. Section 1201 makes it illegal to break encryption on digital media, even when that encryption is thwarting important expressive conduct like criticism, commentary, research, and the like—deeply compromising filmmakers’ ability to make fair use.

Our clients depend on fair use to make commentary, criticism, instruction, add context, and report on current events by utilizing portions of digitized movies and other digitized content. But fair use is of little consequence if filmmakers cannot access the high-quality digital material they seek to use in the first place. Today the vast majority of film and video clips covered by fair use are locked behind encryption. Even though breaking encryption is necessary for nearly all filmmakers who wish to make fair use, the DMCA makes that a crime. As we explain in our brief, this raises serious First Amendment concerns for all filmmakers.

This is the second appeal in this case, and the second amicus brief we have filed. (Read about our first brief, and more about this case, here.) The first appeal concerned only how the DMCA specifically affected the plaintiffs. This appeal is a “facial challenge,” which means the security researchers are asking the Court of Appeals to look not just at how the law affects them, but how it affects everyone—including filmmakers. In this brief, we show that by putting up significant barriers to fair use, the DMCA harms the First Amendment rights of filmmakers everywhere.

Since its founding in 2014, the IPAT Clinic has been a leading advocate for independent filmmakers on this issue. Read more blog posts here about our work in this area.

Special thanks are due to IPAT Certified Law Students Cooper King and Paul Pouzet-Poonegar, who worked tirelessly in drafting the brief and in preparing it for filing. Valentina Comar and Richard Yoo also provided valuable assistance.

Go here to download the brief.

Independent filmmakers file amicus brief in constitutional challenge to copyright laws

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The IPAT Clinic has filed an amicus brief in federal court in Washington, DC in a closely-watched constitutional challenge to an obscure but important part of copyright law. The Clinic filed on behalf of long-time clients Kartemquin Films and the International Documentary Association, in Green v. United States Department of Justice, a case challenging the constitutionality of Section 1201 of the Digital Millennium Copyright Act. Section 1201 makes it illegal to break encryption on digital media, even when that encryption is thwarting important expressive conduct like criticism, commentary, research, and the like—deeply compromising filmmakers’ ability to make fair use.

Our clients depend on fair use to make commentary, criticism, instruction, add context, and report on current events by utilizing portions of digitized movies and other digitized content. But fair use is of little consequence if filmmakers cannot access the high-quality digital material they seek to use in the first place. Today the vast majority of film and video clips covered by fair use are locked behind encryption. Even though breaking encryption is necessary for nearly all filmmakers who wish to make fair use, the DMCA makes that a crime. 

Since the IPAT Clinic’s founding, we have worked with independent and documentary filmmakers to try and mitigate the harms that have resulted from this law. Starting in 2008, filmmakers have participated in rulemaking proceedings at the Library of Congress every three years seeking exemptions that would allow filmmakers to break encryption for fair use purposes. And filmmakers have spoken eloquently about the problems with the DMCA both at the Library of Congress and in publications like Vice Magazine. 

While independent filmmakers have been successful in getting exemptions that make a difference for their practice, the exemptions are deeply flawed and inconsistent, and the entire process is a burden on the public. The Section 1201 rulemaking requires filmmakers to undertake hundreds of hours of complex legal work and fact-gathering, which would be impossible without pro bono counsel. 

 

A slide from a U.S. Copyright Office demonstrating the numerous steps involved in the rulemaking process required to exercise fair use; the slide provides support for a key point in our brief, which is that the rulemaking is too complicated to work as a “fail-safe” that squares Section 1201 with the First Amendment. (The slide actually leaves out some steps, including initial petitions and petitions for renewal.)

 

Enter Green v. DOJ, In 2016, a group of researchers filed a constitutional challenge to the DMCA arguing that Section 1201 violates the First Amendment, and the rulemaking process Congress created does not remedy the law’s constitutional defects. The case is now before the U.S. Court of Appeals for the District of Columbia.  

Since 2008, Kartemquin and IDA have been at the forefront of a large coalition of groups representing thousands of independent filmmakers across the nation in DMCA rulemakings. In last week’s amicus brief, we shared our experiences with Section 1201, explaining that it impermissibly constricts filmmakers’ fair use rights by making it a crime to access encrypted digital content even when the underlying use is perfectly legal. We also described what the rulemaking has been like for filmmakers. The process has been hugely burdensome, and while the exemptions filmmakers have achieved have been useful, they are inconsistent, difficult to understand, and even more difficult to use. For this reason, with the IPAT Clinic’s help Kartemquin Films and the International Documentary Association have filed an amicus brief in the Green appeal.

“Section 1201 results in a significant burden on the documentary field,” said Kartemquin Films Founder and Artistic Director Gordon Quinn.  “Every three years we have to seek an exemption to this rule in order to ensure that we can continue making our films which contextualize, critique and comment on previous works to support the stories we tell. We are hopeful that the court in this case will relieve this burden as we continue to exercise our right to fair use.”

The Supreme Court has said on several occasions that fair use is a “built-in First Amendment accommodation,” a safety valve that allows copyright to coexist with freedom of expression. As we expressed in the brief, this why Section 1201 raises serious constitutional issues: it makes fair use impossible in many circumstances. If Congress chooses to amend copyright it is free to do so—but not when if it restricts fair use. 

UCI law students Luciano Alvarado, LaBreonna Bland, Alyx Bogus, Roxanne Markus, and Alexandra Stockton worked tirelessly on this project. “Researching and following the progression of the DMCA rulemaking was honestly shocking from a modern perspective,” said Alyx Bogus ’23. “This law, drafted and passed before Netflix, YouTube, or even Blu-ray discs existed, quickly became out of date as the internet and digital content evolved. In an increasingly digital landscape, it is critical that creators be able to obtain and use materials pursuant to fair use to preserve Copyright’s constitutional purpose of promoting the progress of science and the arts.”

Here is the brief.

 

IPAT Clinic helps secure broader DMCA exemptions

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In another win for independent filmmakers, the award-winning UCI Law Intellectual Property, Arts and Technology Clinic directed by Prof. Jack Lerner, joined by co-counsel Donaldson + Callif, secured a renewal and modification of an exemption to the Digital Millennium Copyright Act (DMCA) to include fair use exemptions for fictional and narrative filmmakers. The Library of Congress ruling on October 26, 2018 renewed the existing exemption, which only applied to documentary filmmakers, and modified it so that fictional/narrative filmmakers also have their fair use rights restored where making fair use of content “for parody or its biographical or historical significant nature.” Without these exemptions, non-documentary filmmakers could not obtain content from DVDs, Blu-ray, and other encrypted media without fear of criminal liability, seriously burdening their ability to make fair use. The Clinic represented a coalition of major independent filmmaking organizations in the effort, led by the International Documentary Association, Film Independent, and Kartemquin Films.

Author groups are celebrating because the Librarian of Congress also modified an exemption to allow authors nationwide to access content from encrypted media for use in multimedia e-books. The previous exemption was limited to authors “offering film analysis.” Now, any non-fiction author will be able to use the exemption, greatly improving their ability to make fair use. The IPAT Clinic, together with co-counsel the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, represented major author groups including Authors Alliance, the American Association of University Professors, the Organization for Transformative Works, and the Interactive Fiction Technology Foundation.

“It’s a great day for fair use,” Prof. Lerner said. “These new nationwide exemptions represent major breakthroughs in fair use rights for creators. I am incredibly proud of our UCI Law students, the amazing organizations who worked hard on this effort, our brilliant co-counsel teams at Donaldson + Callif and Colorado Law, and the allies and fellow travelers who came together to make this happen. Our passionate, inspiring clients and partners deserve endless thanks.”

The IPAT Clinic is a leading advocate for the fair use rights of creators. In 2016, the Clinic won a California Lawyer Attorney of the Year award for its work seeking DMCA exemptions on behalf of authors and filmmakers.

The Final Ruling from the U.S. Copyright Office and Library of Congress was published on October 26.

Digital Millennium Copyright Act: Comments Filed!

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The Digital Millennium Copyright Act makes it illegal to rip content from DVDs, Blu-ray discs, streaming sites, and many other forms of modern media. This harms authors and filmmakers alike because creators often want to incorporate content into new pieces of art; in the digital age, such uses are essential to criticism and commentary. The problem is that, while such uses are legal under fair use, the DMCA makes it impossible to access such content without the fear of criminal liability.

The UCI Intellectual Property, Arts, and Technology Clinic has long been active on this issue. In 2015, we obtained a nationwide exemption that affects documentary filmmakers and authors of multimedia e-books offering film analysis. Advocating on behalf of large coalitions of filmmakers (led by Film Independent, the International Documentary Association, and Kartemquin Films) and authors (led byAuthors Alliance, Organization for Transformative Works (OTW), the American Association of University Professors (AAUP), and Bobette Buster), IPAT clinic students and co-counsel filed extensive comments with evidentiary support and went to Washington DC to testify in hearings at the Library of Congress. Last fall, we were back at it. On December 18th, the IPAT Clinic submitted two sets of comments to the United States Copyright Office.

On behalf of Authors Alliance, OTW, AAUP, and the Interactive Fiction Technology Foundation, together with our co-counsel at the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, we filed a comment seeking to modify the existing exemption so that all authors can utilize the exemption: currently, only authors making fair use in ebooks that are nonfiction and “offer film analysis” can use it; we argued that all authors, not just this tight subset, should be able to utilize the exemption so that they, too, can make fair use. This includes scholars, fanwork authors such as Heidi Tandy, and cultural commentators like Kirby Ferguson. Stephanie Phan and Brian Tamsut led this effort for the IPAT Clinic. Read the comment here.

On behalf of Film Independent, IDA, Kartemquin, and others, together with our co-counsel Donaldson + Callif LLP we sought to modify the existing exemption to apply to all filmmakers, not just documentarians. IPAT students took a deep dive into film history, unearthing no fewer than seventeen competing definitions of “documentary filmmaking” going back to the 1920s to show that it is not possible to draw a bright line between documentary filmmaking and other types of filmmaking. Countless examples of biopics, dramatizations, films “based on a true story,” and “hybrid” films that straddle the line between doc and fiction demonstrate that to issue a rule based only on the moniker “documentary” raises serious constitutional problems. Shaia Araghi and Lauren Wertheimer led this effort for the IPAT Clinic, with Karen Shin and Jianna Yun.  Read the comment here.

What’s next? More comments will be filed in February and March, and in April the U.S. Copyright Office will hold hearings. See you inWashington!

IPAT Participates in US Copyright Office Roundtable on Improving the DMCA Rulemaking Process

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Copyright Office 1201 Study SF RoundtableOn May 25, IPAT participated in the United States Copyright Office’s Section 1201 Study roundtable in San Francisco, discussing ways in which the Office can improve the lengthy and burdensome DMCA rulemaking process. IPAT Clinic Director Jack Lerner appeared on behalf of the International Documentary Association, Film Independent and Kartemquin Educational Films, and advocated for the changes included in the Initial Comment that we submitted to the Register of Copyrights in March as part of the Office’s Section 1201 Study. He also addressed the further recommendations, clarifications, and responses to other initial commenters included in the Reply Comment that we submitted in April, in which the International Documentary Association, Film Independent and Kartemquin Educational Films were joined by Independent Filmmaker Project, Indie Caucus, The National Alliance For Media Arts and Culture, New Media Rights, and Women in Film & Video.

The Copyright Office staff asked many probing questions and, having participated in previous rulemaking proceedings, we appreciate the opportunity to share our insight and experience with them. You can read more about the Clinic’s efforts on behalf of the International Documentary Association, Film Independent, Kartemquin Educational Films, and many others to improve the Digital Millennium Copyright Act here.