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  • From Fair Use to Exemption
  • Peter Decherney (bio)

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. [End Page 120]

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 time to change the way consumers and educators as well as Hollywood and policymakers think about digital media.

The exchange of fair use for a series of carefully defined exemptions is a dramatic transformation of copyright policy. Exemptions to copyright law are not themselves new, but in the past, exemptions (for all government-produced works, for example) have existed alongside fair use. Key here is that, while the DMCA allows for exemptions to its provisions, it does not exempt fair use.

Since 1998, the exchange of fair use for exemptions has moved beyond the realm of digital media encompassed by the DMCA. New legislation, for example, seeks to extend the fair use-for-exemption strategies of the DMCA to analog and broadcast technologies. In another telling example, the Australian government recently reviewed U.S. digital copyright law during a reassessment of its own copyright policies; they decided in favor of cataloging exemptions rather than adopting the broad fair use standards of the United States. Increasingly, both risk-averse gatekeepers (publishers, Internet service providers, university general counsels, etc.) and the public are becoming accustomed to licensing, contracts, and exemptions where fair use once existed. When in October 2005 Wall Street Journal technology columnist Walter Mossberg decried the state of technological restrictions on the personal use of digital media, he argued for a new, broad exemption to be written into the copyright law. Mossberg did not even bother to mention that the uses he was advocating had been covered by fair use before 1998. That is a distant memory.4 [End Page 121]

How should media scholars respond to the move from a culture of fluid academic use to a culture of permission? (Media studies, after all, was built on fair use, on the ability to use media in classrooms without having to ask permission.) One answer is simply to ignore the DMCA, even if that means breaking the law. But that answer is not as simple as it once was. Technological restrictions on the use of media are making it increasingly difficult to exercise fair use. It requires both a degree of technical competence and the support of academic institutions to venture into the shaky legal territory of fair use—both...

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