Yesterday I had the extraordinary opportunity to formally testify before the general counsel of the Copyright Office to obtain a DMCA exemption permitting the Fair Use embedding of video clips in ebooks. This followed on written testimony that was submitted to the Copyright Office. Our panel was led by Professor Jack Lerner of the USC Intellectual Property and Technology Law Clinic.

The right to this testimony is enshrined in the Digital Millenium Copyright Act, which makes breaking “technical protection measures” (or DRM) on digital content unlawful, even if the use of such content is Fair Use. Fair Uses would include cases where authors or filmmakers embed segments for teaching, education, or entertainment. The DMCA provides an escape provision whereby the “Librarian of Congress may designate certain classes of works as exempt from the prohibition against circumvention of technological measures that control access to copyrighted works when such circumvention is done to engage in non-infringing uses of works … .” In order to assist the Librarian, the Copyright Office, which is housed administratively in the Library, holds hearings on applications for exemptions. Permitted exemptions are granted for a period of three years and must be renewed. Exemptions that have been granted in the past include support for jail-breaking phones, allowing the blind to have access to protected ebooks, and support for the use of video clips from protected media such as DVDs.

Our session on ebooks proposed that it should be permissible to “break” the DRM on DVD video sources in order to embed brief video segments into multimedia ebooks; we didn’t apply for the higher-quality Blu-Ray, seeking a relatively low threshold. Nonetheless, this exemption would be useful in a wide number of situations: travel books, cooking, cinema and performance arts, and a wide array of other cases could easily take advantage of an exemption. I was joined in my testimony by Bobette Buster, a famous film scholar at USC, who is seeking to make an ebook that permits her teachings on cinema to reach tens of thousands of individuals, as opposed to the mere tens or hundreds who might be able to attend her classes in person. As multimedia ebooks are expected to see tremendous growth within the next few years, our request seems both necessary and urgent. Continue reading →