The following is a guest post by Aleksander Danielyan and Lauren Wong, third-year law students of the Intellectual Property, Arts, and Technology Clinic (IPAT) at the University of California, Irvine School of Law. Over the past year, UCI-IPAT and the Samuelson-Glushko Technology Law & Policy Clinic represented Authors Alliance in a Library of Congress Rulemaking seeking to preserve authors’ fair use rights in the digital age.
Over the past year, we have had the pleasure of representing Authors Alliance along with a coalition including the American Association of University Professors, the Society for Cinema and Media Studies, the University Film and Video Association, and film scholars Bobette Buster and Mark Berger in a Library of Congress rulemaking in which we sought to preserve e-book authors’ rights to make fair use in the digital age.
At issue is the Digital Millennium Copyright Act. As Authors Alliance has written previously, the DMCA makes it illegal to break encryption or any technological lock that protects copyrighted content. The predictable effect is that many legitimate uses are impossible under the DMCA. In our case, authors want to make fair use of audio and video content in e-books—but can’t because the DMCA makes it illegal to access popular media like DVD and Blu-ray.
In comments filed over the past year, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed high-quality content into their works for fair use purposes—impossible without a special exemption from the Librarian of Congress. A previous exemption allowed circumvention of DVDs and online distribution services only in non-fiction e-books offering film analysis. This round, we asked that the 2012 exemption be modified to allow authors to access Blu-ray content and use this high-quality content in all works, not just film analysis.
Much of this year-long effort involved collecting evidence and demonstrating that access to high-quality content like Blu-ray is essential for e-book authors to exercise their fair use rights in the digital age. We also emphasized the difficulties e-book authors face when licensing such content. In May we traveled to Washington, D.C. to bring our case to the staff of the U.S. Copyright Office and the National Telecommunications and Information Administration. In a lengthy hearing at the Library of Congress, we presented passionate and informative perspectives on the 1201 exemption. Authors Alliance Executive Director Mike Wolfe testified, along with noted film scholar Bobette Buster. UCI Professor Jack Lerner and IPAT student Aaron Benmark also testified, together with Professor Blake Reid and Molly McClurg from the Technology Law & Policy Clinic at Colorado Law.
Late last month, the Acting Librarian of Congress announced this round’s Final Rule, which included one of the two modifications we had requested. The Rule provides an exemption that allows e-book authors “offering film analysis” to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of criticism and commentary. The Rule gives authors everywhere access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair use in multimedia e-books. Unfortunately, the Acting Librarian declined to provide an exemption for e-book authors writing about subjects other than film analysis.
Although we are disappointed that the Rule did not provide an exemption for all authors who need it, we are celebrating the Rule as a victory for fair use in the digital age. The Rule demonstrates that the Register recognizes the inherent danger to lawful uses that the DMCA presents in a swiftly changing technological landscape. As e-book technology continues to become more interactive, engaging, and personalized to the needs of individual readers, we see immense potential in a market for e-books that can evolve at the fast pace of technological innovation. But in order for that to happen, authors must be able to make the type of fair uses that they have always made in the brick-and-mortar world. Fortunately—at least for authors offering film analysis—this Rule essentially preserves that right.
We would like to thank our fantastic colleagues at Authors Alliance for the opportunity to represent them in such an important proceeding; Bobette Buster, the AAUP, and others who joined this effort; IPAT students Ranika Morales, Mike Lee, Kyle Reynolds, and Aaron Benmark; the talented team at Samuelson-Glushko Technology Law & Policy Clinic, including Professor Blake Reid and students Molly Priya McClurg and William Kaufman; and our visionary clinic director, Jack Lerner.