Fair use scenario - Miguel and the DVD

In a continuing series of scenarios that explore educational fair use issues. You comments are most welcome.

Miguel, a high school civics instructor, wants to use a short portion of the movie The Candidate to spur discussion on election reform in his class. To embed the the clip into his slide show, he will need to "crack" the copy protection scheme on the commercial DVD.

1. What is the copyrighted material? Who owns it?
2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use?
3. Which takes precedence - The Digital Millennium Copyright Act of 1998 that "makes it a crime to circumvent anti-piracy measures" or the Educational Fair Use Guidelines?
4. What is your level of comfort in helping create such a product? Are there any changes or limits you might like to see that would make you more comfortable with this project?

Your level of comfort with this use of copyrighted materials: High 5 4 3 2 1 Low

Thanks to Miguel Guhlin at Around the Corner for the idea for this scenario.

Comments

[teacherninja]

Good one! I think it is educational use and therefore fair use. I personally would not crack any anti-piracy codes but luckily there are no anti-ninja codes.

[Tom Hoffman]

My first reaction is that this is another troublesome scenario that I would avoid, if I were you, or at least not phrase in the way you did, because it conflates DMCA and fair use and gets really, really confusing. The key to understanding this scenario is keeping the two separate in your cranium.

Then I thought I'd better double-check myself and did a little Googling. Then I started mixing the two concepts up in my cranium and getting really, really confused. Eventually I got back to my original understanding, which I believe is correct.

I am aware of no unabiguously legal-to-own-and-use-in-the-US software to copy copy-protected DVD's. So under the DMCA you can't do it. Also, the DMCA seems to create the weird provision of having the Librarian of Congress decide what is fair use under DMCA anticircumvention: http://www.copyright.gov/1201/

So basically you want to tell people:
a) DVD's are copy-protected;
b) It is illegal to circumvent copy-protection (no matter how weak!);
c) Fair use for circumvention is specifically defined by the Librarian of Congress.

This is not the same thing as fair use under copyright. They are separate issues!!!!!

[Libby]

I haven't read the new fair use document yet (disclaimer). I agree that I think the use of the video clip for class is fair use, but wouldn't it be simpler to provide a DVD player cued to the right scene? Then no code-cracking is necessary...

[Miguel Guhlin]

Tom, this is a REAL scenario based on a request I received in my official capacity. So, whether it's confusing or not, I have to give a real response. No responses have yet arisen that satisfies a genuine need...and that stinks.

Thanks Doug for posting it...maybe we'll see a usable response! BTW, check the spelling on "precidence"..."precedence." [I fixed it. - Doug]

warm regards,
Miguel

[Doug Johnson]

@ Ninja,

Hey, I've lost your email address. If you are reading this, please send it to me!

Thanks,

Doug

@ Tom,

I recognize that this scenario is complex and involves two sets of laws/guidelines. Unfortunately this is the real world and things are rarely neat here. Plus, complexity makes the discussion of such scenarios much richer.

I DO appreciate your insight into the issue.

Doug

@ HI Libby,

I suspect this depends on how often one wants to use the clip. If one were to use it only once, cueing and playing might indeed be easier (and would certainly avoid the DRM issues), but if this were for multiple classes or for multiple semesters/years, a digitized clip embedded in a PPT might be much easier to work with.

Good idea!

Doug

@ Thanks, Miguel. I like these messy ones – much more interesting!

And I fixed my speling.

Doug

[Tom Hoffman]

Yes, I suppose "avoiding" it isn't an option, but you should be very careful about how you frame this in terms of teaching people about copyright. This is not a question about copyright and fair use! It is a primarily a question about circumvention of encryption under DMCA and fair use.

And Miguel, by my reading, you aren't going to get a "usable response." The response to a K-12 teacher is "no" it is illegal for you to circumvent the copy protection on a DVD. That's it! That's the explicit design of the law and the technology.

Put another way, imagine this scenario for a driver's ed text: "Tom wants to drink a six pack and make a left turn on red at the intersection of two one-way streets. Is this legal?"

1) When is it legal to make a left turn on red?
2) How long must a driver stop before turning at a solid red light?
3) If the turn is legal, does it matter that Tom is drunk?
4) Are you comfortable with driving after drinking a six pack?

If you're going to construct a DMCA circumvention scenario, you need to construct a scenario and questions that really focus on the DMCA issues.

[Doug Johnson]

Hi Tom,

Great analogy.

Doug

[Joan Tracy]

This makes me very uncomfortable. I would not participate in cracking the code. I too would suggest a cued up DVD player.

[Trinity Christian Students]

We think that Miguel is in the clear, because he using it towards instructional use and he is only using a snip it of it.

[TCC Pod Domination]

Miguel- this scenario is a sticky one, but we think that you are over thinking it. Fair use states that you can use any video for instructional purposes. We understand that you only want to utilize only a 'snippet' of the video, but why must you break the copyright? All that you would need to do is fast forward to the part in which you would like to present, play the scene and simply stop it when appropriate. You are in the clear on this one- no need to fret.

[Courtney and Markey]

The DVD is copyrighted material and the rights belong to the filmmaker. However the DVD clip was used for educational purposes and therefore Miguel is working within his instructional rights. We think that this situation falls in the Educational Fair Use Guidelines because it was used to begin an educational discussion. Because we feel that he is working within fair use guidelines we both would feel comfortable supporting or assisting Miguel.