Multimedia Use and Transformativeness

Multimedia use presents some special challenges, but also allows for some amazing and exciting new forms of expression!

The Digital Millennium Copyright Act

Photo of goat reaching over a fence to eat the grass and wildflowers on the other side.
Circumventing protection that is as ineffective as this fence can still be a violation of the DMCA
The Other Side of the Fence CC BY-NC-ND nutmeg66

Among several other new legal provisions, the Digital Millennium Copyright Act, or DMCA, which was passed in 1998, created a new kind of copyright violation - "circumventing" "technological protection measures" around copyrightable content. If a work is protected by copyright law, and the owner of the work implements these "technological protection measures", then trying to get around the measures may constitute a separate violation of the law. Although there is some disagreement on this point, most courts have held that circumventing technological protection measures is a copyright violation even if your ultimate goal is a legitimate use.

Described this way, the anti-circumvention mechanisms of the DMCA sound frustrating, but also sound like something that would only affect hackers and reverse-engineers. Unfortunately, that's not the case. Simple encryption is considered a "technological protection measure" for the purposes of the DMCA - even encryption using techniques and codes that have already been cracked.

Encryption? That still sounds like something only hackers would have to worry about - except every DVD is encrypted, as is every Blu-Ray disc, some CDs, and even some printer ink cartridges. Just playing a DVD using a player that has not paid certain fees to the motion picture industry can be a violation - even if the showing is of a legitimately purchased copy in the privacy of your own home! Making copies of any content on a DVD involves circumventing this weak and ineffectual encryption as well, and so may be a violation of the DMCA.

Educational DVD Use Exemptions to the DMCA

Every few years, members of the public have an opportunity to convince the Librarian of Congress and the Registrar of Copyright that some exemptions are needed to the DMCA's tight restrictions on use. In July 2010, the latest round of rulemakings came out with some provisions that specifically apply in the higher education environment.

Circumvention of the encryption on a DVD is not a violation of the DMCA when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos

Note that these provisions actually don't extend to all students - only film and media studies students are exempted by name. But students in other fields of study may be covered by the Documentary or Noncommercial Video exemptions. Note also that these exemptions are only for DVDs - they do not apply to ripping content from Blu-Ray discs (even if you wanted to make a legal fair use of the content, the ripping would be a separate violation), and they don't apply to other encrypted media.

Transformativeness

The 2010 DMCA exemptions for DVD use all require that the final purpose be to make "new works for the purpose of criticism or comment" out of "short portions" of existing DVD content. If this is not your purpose, circumventing technological protection measures to copy from the DVD may be a violation of the DMCA.

Transformative use is exemplified by new works, with new purposes such as criticism or commentary. Therefore, transformative uses of DVD video content are quite likely to satisfy the requirements of the 2010 DVD DMCA exemptions.

The following, while not necessarily made from footage ripped from DVDs, are arguably examples of transformative multimedia uses:

DJ Earworm - United State of Pop 2009 (Blame It on the Pop) - Mashup of Top 25 Billboard Hits


A remix video featuring news footage from Hurricane Katrina, set to Legendary K.O.'s music remix of Kanye West's "Gold Digger"


"Buffy vs. Edward: Twilight Remixed", by Jonathan Macintosh - a transformative work that asks, "What if Edward Cullen had met Buffy Summers instead of Bella Swan?"
The Buffy vs. Edward video is available for download and re-use under its own Creative Commons license.

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This web site presents information about copyright law. The University Libraries make every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.