(cross-posted from Authors Alliance)
The following analysis was written by Harrison Grant and Brian Trinh of UCI Intellectual Property, Arts, and Technology Clinic and Colleen McCroskey and Corian Zacher of Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, under the supervision of Professors Jack Lerner and Blake Reid. Authors Alliance is grateful to the student attorneys and their supervisors for their tireless work securing exemptions to Section 1201 for authors and for this careful analysis of the results of recent rulemaking proceedings related to multimedia e-books.
On October 26th, the Library of Congress announced important new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA) that will improve authors’ ability to create in the digital environment. Thanks to the work of a coalition of authors’ organizations including Authors Alliance and two law clinics who represented them, today authors of any non-fiction multimedia e-book can use content from DVDs, Blu-ray, and digitally transmitted video to make fair uses of copyrighted material in their own works.
Fair use is a recognized limitation to copyright in the United States that allows authors to use copyrighted works under certain circumstances. However, Section 1201 makes it illegal to break measures like encryption that protect copyrighted content, and most courts have held that the fair use doctrine does not apply to Section 1201.
Fortunately, some relief for authors has come from the DMCA’s triennial rulemaking process, during which the Library of Congress grants exemptions to Section 1201 based on recommendations from the Register of Copyrights, who runs the U.S. Copyright Office. In 2011, authors first asked the Copyright Office for an exemption to circumvent technological protection measures for the purposes of creating e-books.
The Librarian of Congress initially granted the exemption, but only for nonfiction works “offering film analysis.” In 2015, Authors Alliance and other groups again went back, pushing for the exemptions to be extended to all authors, without these limitations. Blu-ray and streaming were added to the exemption, but the tight restrictions on any works that weren’t nonfiction and “offering film analysis” remained.
In fall 2017, Author’s Alliance, alongside the Organization for Transformative Works, the American Association of University Professors, the Interactive Fiction Technology Foundation, and Bobette Buster, petitioned again to have the “nonfiction” and “offering film analysis” restrictions removed. Represented by the UCI Intellectual Property, Arts, and Technology Clinic and Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, the groups filed numerous documents, including long-form comments on the proposed modifications to the exemption initially granted in 2011.
We argued that e-books that contain fictional content, or don’t offer film analysis, can and do still make fair use. In particular, we argued that many fanworks, inherently fictional and generally published as e-books, contain pointed criticism and commentary, two factors that weigh heavily towards a determination of fair use.
We worked closely with Organization for Transformative Works and Interactive Fiction Technology Foundation to bring to the Copyright Office’s attention the massive and growing fanworks movement—legions of fans who for years have been dissecting, discussing, analyzing, and playing around with cultural material in the form of fanvids, fanfiction, visual novels, and other works. The size of the movement is astonishing: fans of various franchises have created their own visual novel engine, Ren’Py, and a massive archive called Archive of Our Own containing over 4 million fanworks. In April, Heidi Tandy, one of the nation’s leading attorneys working on fair use in the fanworks context, testified at a hearing at the Library of Congress in Washington to talk about an educational project she wants to undertake, which involves creating a fanwork derived from the hit television series “Supernatural” by utilizing fanfiction as a vehicle to critique and comment on the series.
We also argued that the current exemptions were ambiguous as to what “offering film analysis” means. Authors did not want to risk the consequences of violating the DMCA by accident. For these reasons and more, we pressed the Library of Congress to expand the exception to all e-books.
The 2018 Exemption
On October 25, we learned that the exemption would be modified to “use in nonfiction multimedia ebooks” and the “offering film analysis” limitation would be removed. Despite the fact that we did not win exemptions regarding fanworks, this is still a significant victory. Authors can now create many new types of e-books that include high-quality audiovisual materials, including business presentations, interactive educational materials, news e-books, biographical and historical e-books, nonfiction visual novels, and more.
The Screen Capture Conundrum
The previous exemption required authors to consider screen capture technology before using the exemption, but it was also unclear as to whether screen capture technology violated Section 1201’s restrictions on circumventing encryption. This created confusion among copyright holders and authors wishing to make non-infringing use of copyrighted content.
This ambiguity, along with the fact that screen capture is often unsuitable for use in multimedia e-books, led us to advocate for the removal of all reference to screen capture technology.
In its recommendation, the Copyright Office continued to require that authors must consider screen capture before utilizing the exemption, but it attempted to provide more guidance on whether the use of screen capture technology would violate Section 1201. It did this by narrowing the category of what constitutes “legal” screen capture technology: now, authors only have to consider screen capture technology that is marketed as non-infringing.
Unfortunately, this new guidance is just as confusing to authors as the previous rule. To use the exemption, authors have to hunt through screen capture websites to find statements about whether the software violates Section 1201.
Since at least 2011, numerous commentators have demonstrated that screen capture does not yield suitable images for high-definition screens, is blocked by digital rights management on many systems, and does not comport with common practices across a range of creative communities. Most important, screen capture remains a trap for the unwary: unless authors have specifically studied the exemption, they will not know about the screen capture requirement and may unwittingly violate Section 1201 even if they are clearly trying to make fair use.
The Bottom Line
For authors thinking of using multimedia for a non-fiction project, a barrier has been knocked down. However, authors must still abide by the contours of fair use and navigate the Office’s confusing screen-capture provisions, leaving some uncertainty that in many cases can only be fully mitigated by consulting an attorney.
For authors seeking to make fair use on a fictional e-book projects, not much has changed. But there is still hope. We will be back at the Copyright Office in 2020 and will continue to advocate for authors of all genres of e-book to be exempt from the DMCA. In the meantime, we will be collecting stories from authors who would like to “rip” for fair use purposes but can’t because of the limitations of the exemption.
If you have a multimedia e-book project in mind—particularly one with fictional elements—and want to make fair use, let us know by emailing the UCI Intellectual Property, Arts, and Technology Clinic at firstname.lastname@example.org.
Important caveat: this post is intended only as general information and does not constitute legal advice. If readers wish to utilize the new exemptions granted by the Librarian, they should consult independent legal counsel before doing so.
 The Copyright Office does not have an official definition of what is fiction and what is non-fiction. E-books that contain elements of both should, unfortunately, be cautious.