The Limits of the Limits of the Law: How Useable Are DMCA Anticircumvention Exceptions?

Authors

  • Patricia Aufderheide School of Communication, American University
  • Aram Sinnreich American University
  • Joseph Graf American University

Keywords:

copyright, DMCA, educators, filmmakers, students, remix, creativity

Abstract

The U.S. Digital Millennium Copyright Act (DMCA) criminalizes decryption of “copy protected” digital content, even if the decryption itself serves lawful purposes that do not infringe on copyright. However, temporary exemptions to this prohibition are granted triennially if communities of practice can demonstrate that the encryption ban adversely affects noninfringing uses. This study explores to what degree members of communities with existing exemptions for audiovisual work (1) are aware of the DMCA ban on encryption and (2) are aware of the relevant exemptions, and (3) whether they believe they can use the exemptions with confidence. We find that existing knowledge of DMCA exemptions is low, but that creators may employ the exemption reliably if given the exemption language. This empirical evidence demonstrates creative and productivity costs of narrow exemptions, as well as the importance of education. Results are relevant to discussions about international treaty intellectual property discussions, about the function of exemptions in intellectual property law, and about the consequences of criminalizing decryption.

Author Biographies

Patricia Aufderheide, School of Communication, American University

Patricia Aufderheide is University Professor in the School of Communication at American University in Washington, D.C., and founder of the Center for Media & Social Impact. Her books include Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press), written with PeterJaszi; Documentary: A Very Short Introduction (Oxford); The Daily Planet (University of Minnesota Press), and Communications Policy in the Public Interest (Guilford Press). She has been a Fulbright and John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival. Aufderheide has received numerous journalism and scholarly awards, including career achievement awards, in 2010 from Women in Film and Video, 2008 from the International Digital Media and Arts Association and in 2006 from the International Documentary Association. In 2015, she received the George Stoney Award for Documentary from the University Film and Video Association.She is available at paufder (at) american.edu.

Aram Sinnreich, American University

Aram Sinnreich is an Associate Professor and chair of the Communication Studies division at American University’s School of Communication. Sinnreich’s work focuses on the intersection of culture, law and technology, with an emphasis on subjects such as emerging media and music. He is the author of two books, Mashed Up (2010), and The Piracy Crusade (2013), and has written for publications including The New York Times, Billboard, Wired, The Daily Beast, and The Conversation. Prior to coming to AU, Sinnreich served as Associate Professor at Rutgers University's School of Communication and Information, Director at media innovation lab OMD Ignition Factory, Managing Partner of media/tech consultancy Radar Research, Visiting Professor at NYU Steinhardt, and Senior Analyst at Jupiter Research. He is also a bassist and composer, and has played with groups and artists including progressive soul collective Brave New Girl, dub-and-bass band Dubistry, and Ari-Up, lead singer of the Slits. Along with co-authors Dunia Best and Todd Nocera, Sinnreich was a finalist in the 2014 John Lennon Songwriting Contest, in the jazz category.

Joseph Graf, American University

Joseph Graf is an assistant professor of public communication. He is former research director for the Institute for Politics, Democracy and the Internet, which promoted Internet politics to improve civic engagement. He has published extensively in political communication and online politics and is focused on the intersection of civic involvement and new media technology. Graf has taught as a visiting professor at The George Washington University. He began his career as a newspaper reporter in Wisconsin and Pennsylvania.

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Published

2018-09-28

Issue

Vol. 12 (2018)

Section

Features

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