Questions that arose during the DMCA 2009 rulemaking hearings

Some issues arose during the 2009 DMCA rulemaking hearing that took place in the US Copyright Office. One of these issues was concerning the use of screen-capturing software such as snag-it, camtasia, and morae. Snag-it was the only application mentioned by name. These discussions took place both during the educational exemption panel (afternoon May 6), and the general exemption panel (the vidders, morning May 7).

No one in the room, either those representing the motion picture industry, the copyright office panelists, nor those testifying in favor of the use, could say whether or not such screen capturing software is accomplishing a "circumvention" of technological protection measures.

So that question was left open.

Another question that arose, was whether or not an exemption for copying is even needed, since the DMCA was never intended to prohibit circumvention for purposes of copying as opposed to circumvention for purposes of gaining access. The MPAA and those opposing the exemption, argue that since both the access and copying controls are folded into one, to circumvent for copying is the same as circumventing for gaining access. I asked the copyright office to address this in its recommendations. They discussed it in the April 3, 2006 transcript, but never made a determination on this issue. The legislative summary I quoted from during my testimony clearly states that it is not the intention of congress to stop people from circumventing in order to make copies.

Another interesting development, was that there was consensus from the other side of the aisle, those opposing the exemption, that the kind of use I showed, a student created montage done for an academic conference, a course seminar, and submitted towards degree completion, was certainly a "fair use" under section 107.