The Digital Millennium Copyright Act of 1998 (DMCA) makes it illegal for the public to circumvent the encryption technologies in their digital purchases. Just a few days ago (May 17^th), testimony was presented to federal regulators on the issue of whether the public, especially filmmakers and video mixers, should be allowed to lawfully crack DVD encryption to copy the material contained within and obtain high quality video clips.

The DMCA was signed into law by President Clinton in 1998, and the Act is largely responsibly for the success of companies such as Google and YouTube due to its strict notice and takedown system, which protects websites from liability for copyrighted material uploaded by its users as long as the operator of the site takes down the material when notified that it was uploaded without permission. The Act includes an anti-circumvention rule that prevents users from finding a way around the encryption provided for digital technologies, including DVDs. Even lawful owners of technology, including DVDs, are forbidden from copying the legally purchased material according to the anti-circumvention provision of the DCMA, which states, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

However, an exemption to the anti-circumvention rule also states that the aforementioned shall not apply to users of copyrighted works, “if such persons are…adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works….” This exemption places the burden on users who want to circumvent DVD encryption technology. They will have to show that they will be adversely affected by the anti-circumvention rule during the production of a noninfringing work.

The filmmaking industry is largely opposed to the pro-decryption views of the filmmakers. The industry representatives testified at the recent hearing, opposing a decryption exemption for filmmakers. They argued that filmmakers and video artists still have the option to license the bits of film from the respective film studios or to use screen capture technology on computers. Despite industry opposition, the filmmakers are pushing for an exemption to the DMCA due to the poor quality of the film obtained through these other methods.

In addition to filmmakers and the general public, video remix artists also testified at the public hearing, asking for a decryption exemption for video production reasons. Just as the filmmakers are asking for encryption cracking for increased film quality, video mixers are pursuing encryption cracking for the same increased picture quality in the bits of video being displayed. If federal regulators allow the exemption to the DMCA; filmmakers, video remix artists, and the public at large will be able to use decryption technology to copy the material contained within DVDs and obtain high quality video clips. These users will benefit by being able to use these high quality clips to make the best possible reproduction for filmmaking purposes. However, content owners, such as the filmmaking industry, are afraid that granting the exemptions will lead to the same kind of mass piracy that the recording industry is experiencing with unprotected music. Still, pirates are likely to continue to utilize decryption measures with or without the anti-circumvention exemption, so piracy of DVDs is unlikely to escalate if regulators approve the exemption request.

Since 2000, regulators have allowed four anti-circumvention exemption requests, making it a significant possibility that the exemption up for debate will be granted. All possible exemptions to the DMCA, if approved, will expire in three years and will have to be reauthorized by the U.S. Copyright Office. Federal regulators are expected to approve or deny the exemptions later this year.

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