Accessing Technology Protected Copyrighted Content Under the DMCA

Consider the following hypothetical:

A faculty member in the Department of Art wants to screen a documentary video on the history of the Impressionist art movement in 19th century France. She legally obtained a six-part DVD series from PBS that she purchased fifteen years ago, but there are a few scratches on two of the DVDs that make continuous streaming of the content difficult for her students to view. Furthermore, the DVD player in the classroom is old, and she believes that her DVDs were scratched because of this outdated machine. After requesting a new DVD player from the IT Department, the faculty member is directed to the Digital Services unit in the library. She is excited to learn that this unit has circumvention technology that can decrypt the content scrambling system (CCS) on her DVDs and digitize them. After making a digitization request, the faculty member receives a .mp4 file of the digitized DVDs and proceeds to stream the entire series throughout the semester of her in-person class. Is this allowed?

The short answer

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to amend U.S. copyright law for the purpose of addressing important emerging issues at the intersection of copyright law and the internet. The DMCA increased protections for copyright holders whose works were being infringed in new ways due to the interconnected world of the internet and widespread adoption of digital technologies.

Section 1201 of the DMCA prohibits two types of activity: (1) the circumvention of technological protection measures (TPM) used by copyright holders to control access to their works; and (2) the manufacturing, offering to the public, trafficking, and providing of certain circumvention technologies, products, services, devices, and components.

Although decrypting or “ripping” DVDs is unlawful under Section 1201 of the DMCA, certain exemptions exist for educational purposes. In the above hypothetical, if the faculty member has unsuccessfully tried to purchase a streaming or digitized version of the content on the open market or if there are legitimate difficulties in obtaining a replacement DVD or functioning DVD player for displaying the content in the classroom, then the faculty member may “rip” the DVD. However, she may only use “short portions” of the content for teaching and educational purposes. Therefore, in the hypothetical, streaming the entire, decrypted, digitized six-part series in the faculty member’s art class would likely not qualify as an exempted use.

So, DVDs can be ripped for educational purposes?

In the case of ripping DVDs, circumvention is permitted only when “short portions” of copyrighted motion pictures or other audio-visual works will be used for educational purposes. However, caveats apply. There must be no other non-circumventing alternatives of the encrypted content available in the marketplace, and the DVD must be a legally purchased copy.

Here are some questions you might ask when determining whether ripping a DVD for an educational purpose is permissible under law: Was this DVD purchased from a reputable seller or is it a pirated copy that you picked up from a street hawker when you were on vacation / studying abroad? Is the content available via a streaming platform, such as Amazon or Netflix? Can I purchase or license a digitized copy from a retailer or the film’s production company? Can the library obtain a digital version of the content for me? Does the content already exist in the library’s e-resources collections for film and audio-visual materials? Can I legally obtain a new DVD and new DVD player and successfully use these materials to teach my class?

If you have conducted a similar analysis for your intended use, then “short portions” of a ripped DVD may be used, in most cases, without infringing copyright law. In the classroom, “short portions” can be streamed for the purpose of criticism, comment, teaching, and scholarship. For online courses, “short portions” can be transmitted through an online course platform as long as technological measures are taken by the educational institution to prevent the unauthorized further dissemination of the work and the retention of the work on the online course platform beyond the end of the course session.

Are there any other exemptions to DMCA Section 1201?

Exemptions to the anti-circumvention rule currently exist for criticism and comment for filmmaking, e-books, K-12 programming, massive open online courses (MOOCs), digital literacy programs, and text and data mining. Exemptions also exist for accessibility and preservation purposes. For example, if universities, libraries, and archives need to add captioning or audio descriptions to encrypted content for viewers with disabilities, then circumvention is permitted. In the case of damaged or deteriorating copyrighted content with digital rights management protections, circumvention is allowed to preserve the content or create a replacement copy.

For more information about the Digital Millennium Copyright Act (DMCA) and Section 1201 exemptions, please contact Agnes Gambill West at gambillab@appstate.edu.