From Fair Use to Exemption

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The text of the Digital Millennium Copyright Act (DMCA) of 1998 acknowledged that it had the potential to harm fair use. So the drafters of the DMCA inserted a safety valve. Where fair use is harmed, exemptions can be made.

But the process for creating exemptions is long and laborious. The U.S. Copyright Office has been empowered to review requests for exemptions every three years, and the review process can take close to a year to complete. The exemptions then need to be renewed at every triennial rulemaking, so if you are lucky enough to get an exemption, you must spend one-third of your time keeping it. To date, very few exemptions have been granted; indeed, there are currently only four, all very narrow. ¹

In November 2005, along with two colleagues from the University of Pennsylvania and the help of two American University law students, I requested an exemption for media professors making clips from DVDs for use in classes. ² (Yes, it is currently illegal. ³ ) Our request was a very small intervention in both the legislative process and the history of fair use. But the responses from academics, the Copyright Office, and especially from both Hollywood and technology manufacturers offer insight into the current state of academic fair use and the diffusion of digital media.

The stakes of academic fair use are higher than ever. Media professors continue to venture into uncharted fair use territory, using digital multimedia works in their teaching, research, and publications. Hollywood and technology manufacturers, for their part, are determining how they will make money from the next wave of digital distribution. Not only are the stakes high, the timing is crucial. Fair use is the product of norms as well as laws, and the norms that are established now will determine the future of fair use. Moving towards the end of its first decade, the DMCA has already had [...]"