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Documentarians Seek Relief from DMCA's Catch-22

BY Nancy Scola | Monday, May 11 2009

Documentary filmmakers are hopeful that a change in presidential administrations creates a window in which to sort out a conundrum over fair use, the Digitial Millennium Copyright Act, and copyright that can effectively cut artists off from content to which they have a legal right. Because of incongruities in U.S. laws governing the use of creative content, filmmakers are permitted under "fair use" provisions to make use of a wide range of video clips, photographic stills, audio, and other content that is, alas, only available to them on DVDs that are off limits under the DMCA. Break the DVD's encryption -- an easy technical feat -- and you're breaking the law, even though by using the jailbroken content you're well within your rights.

And so, last week a team of well-known documentarians, including the artists being "Hoop Dreams," "Super Size Me," and "This Film is Not Yet Rated" went to the U.S. Copyright Office (a branch of the Library of Congress) to petition for an exemption. The Motion Picture Association of America argued in response that the most reasonable way for documentarians to gain access to the footage they need is to simply ask the copyright holders for an unencrypted copy. Of course, that's made somewhat more difficult by the fact that that copyright holder might often be the subject of the less than flattering film in question.