A Media Literacy Exemption on the DMCA?: An Interview with Renee Hobbs

Today's blog post is a call to action. Renee Hobbs, a leading Media Literacy educator, has requested our help in changing the copy protection provisions of the Digital Millennium Copyright Act in a way that will further the goals of American media education. As Hobbs notes in the following interview, teachers often cite uncertainties about copyright and fair use as having a "chilling effect" on their efforts to bring media literacy skills into the classroom, even as there has been a growing public recognition that these 21st century competencies are vital in preparing young people for the new media landscape. One of the key areas for concern has to do with the legality of breaking copy protection codes on DVDs in order to insure greater access to clips for instructional use or for deployment in student projects.

Legal scholars have long noted that commercial producers are deploying copyright protection in ways which make it impossible for anyone to exercise their "fair use" rights over the materials and thus the code, to use Lawrence Lessig's famous distinction, restrict things which might well be protected under the current law.

But there are mechanisms for insuring exemptions from the DMCA provisions and Renee Hobbs has petitioned for an exception which would protect the rights of teachers to deploy copyrighted materials for teaching media literacy education, similar to the protections which already exist for me, as a Film Studies Professor, to break the code in order to make materials accessible to my students at the university level.

She's asking others who share her concern about these issues to send along supporting letters, which need to be received by February 2 2009 -- that is, the end of this month. (See details at the end of this post.)

The following interview with Hobbs outlines the argument and the process by which you can contribute your support. I'm drafting a letter of support myself and hope other readers of this blog will both write letters and help us spread the word about this worthy effort.

You recently completed a report for the MacArthur Foundation about the impact of copyright confusion on the field of media literacy education. How did you get involved?

I began teaching teachers about media literacy back in the 1980s, when VHS tapes were the latest technology--it was the age of dinosaurs, it now seems. I would bring in a handful of tapes which I had cued up, including excerpts from TV news, advertising, movies and popular television programming. I demonstrated a variety of instructional techniques that K-12 teachers could use to integrate critical analysis of mass media and popular culture into classes in English language arts, social studies, and health education. Today, because media literacy is mandated in nearly all state curriculum frameworks, often as part of 21st century skills education, I cross the country offering teacher workshops in states from Oregon to North Carolina. I now use my digital video recorder to record television programs and store clips on my computer's laptop.

But with every group of teachers I work with, there's a question that always comes up with an increasing spirit of trepidation: "Is it legal to use copyrighted material like this?"

"Of course," I say. Like many media literacy educators, I use copyrighted materials under the doctrine of fair use (Section 107 of the Copyright Law of 1976). Users have the right to use copyrighted materials without payment or permission, depending on the specific context and situation of the use.

It is ironic that, at a time when online digital technologies are enabling educators to create and share an ever-widening array of texts, sounds, still and moving images, music and graphic art, we are seeing a dramatic increase in the climate of fear among educators concerning the use of these resources for teaching and learning. And since fear reduces innovation, those of us who promote the use of digital media as tools for teaching and learning need to sit up and take notice.

In our 2007 report, The Cost of Copyright Confusion for Media Literacy, we found that media literacy educators share certain values about the use of copyrighted material, including news, advertising, movies, music, videogames, and other aspects of mass media, digital media and popular culture. While they respect the rights of owners of intellectual property, they also believe that it is necessary to use copyrighted works freely for the purpose of strengthening students' critical thinking and communication skills.

However, some educators attempt studied ignorance, believing that increased knowledge about copyright would impede their work. Still others close the doors of the classroom and keep quiet about the use of copyrighted materials in order to avoid potential conflict. The most troubling thing we found was that teachers' lack of knowledge about copyright and fair use affects the quality of teaching and learning. It limits the distribution of curriculum materials and resources, thus affecting students' overall media literacy learning. Plus, most teachers we interviewed do not teach about the law of copyright and fair use because they themselves do not understand it. As a result, students do not learn that copyright is designed to protect both the rights of owners and users in order to promote creativity and innovation.

What factors have led to the confusion?

Many teachers receive misinformation informally from colleagues and supervisors. At some educational institutions, school policies are far more restrictive than the law mandates. Some teachers have tried to distribute their curriculum materials, but found publishers unreceptive due to copyright concerns because media literacy lessons inevitably quote from films, TV shows, advertising, popular culture, and online media.

One big problem is the widespread misunderstanding of the so-called "educational use guidelines," those negotiated agreements between media companies and some educational groups which present a list of hard-and-fast rules defining fair use. These guidelines are not the law. They do not define either the "safe harbors" or the "outer limits" of fair use. Relying on these guidelines actually hurts educators. Some legal scholars fear that if the educational community accepts these "educational use guidelines" in policy statements or in settling litigation, the concept of fair use will be weakened and narrowed, not strengthened. Columbia University legal scholar Kenneth Crews points out, "When the community actually use the guidelines and adhere to them, they are reshaping the normative understanding of the law," sacrificing the flexible nature of the doctrine of fair use.

What have you done to help educators better understand copyright and fair use?

With my colleagues Peter Jaszi of Washington College of Law at American University and Patricia Aufderheide of the Center for Social Media at American University, we worked with media literacy educators following the "best practices" model developed at American University in groundbreaking work with documentary filmmakers, who also depend on the doctrine of fair use. With support from the John D. and Catherine T. MacArthur Foundation, we brought together groups of educators (from higher education, K-12 settings and youth media organizations) in ten cities across the United States, including Chicago, Austin, Texas, Philadelphia, Boston, and New York. After introducing educators to basic concepts in copyright law, we offered them various hypothetical scenarios for discussion, inviting them to reason through the process of determining when educators' or students' use of copyrighted materials was "fair" and "unfair" according to the doctrine of fair use.

The consensus principles that emerged from these discussions is reflected in the Code of Best Practices in Fair Use for Media Literacy Education, which was adopted by several national membership organizations, including the National Association for Media Literacy Education. The National Council of Teachers of English (NCTE) adopted the Code as an official policy in November, 2008. The Code identifies five principles, each with limitations, representing the community's own current consensus about acceptable practices for the fair use of copyrighted materials. As stated in the Code, educators can, under some circumstances:

• Make copies of newspaper articles, TV shows, and other copyrighted works, and use them and keep them for educational use.
• Create curriculum materials and scholarship with copyrighted materials embedded.
• Share, sell, and distribute curriculum materials with copyrighted materials embedded.

Learners can, under some circumstances:

• Use copyrighted works in creating new material.
• Distribute their works digitally if they meet the transformativeness standard.

To help students learn, understand, and apply their legal rights under the doctrine of fair use, we created lesson plans for educators and learners as well as videos and two "Schoolhouse Rock" style music videos to illustrate key concepts in copyright law.

When students use reasoning and concepts like purpose, audience and point of view to determine if their use of copyrighted material is a fair use, they develop critical thinking skills and apply an understanding of copyright law, learning to respect the rights of both authors and users.

What is the DMCA and in what ways does it constrain classroom practices?

It is the acronym of the 1998 law, the Digital Millennium Copyright Act. This law makes it illegal to use software to "rip" or circumvent the encryption codes on commercially-produced DVDs. Because media literacy teachers and learners depend on film DVDs as a source of relevant quotations for use in both in classrooms and for student media production assignments, this law has an extremely negative impact on our work.

Although some teachers use multiple DVDs when showing clips in class, it's really inefficient and ineffective--it wastes valuable classroom time. DVD players are slow to load. Some DVDs automatically play trailers for other movies every time you play them. Some DVDs don't let you cue up which means you have to go through all the chapters to find the scene you want to use. For all these reasons, teachers want to be able to make a copy of the scenes they want to use so they can use them more effectively.

For example, teachers who want to sharpen comparison-contrast skills may want to analyze two different film adaptations of Romeo and Juliet. To conduct a historical analysis of media professionalism, they may want to show and discuss a series of clips focused on the representation of newspaper editors using excerpts from All the President's Men, Absence of Malice and The Paper. They may want to show film clips in an academic conference presentation to illustrate certain nuances of pedagogy and instruction concerning the use of film in education.

However, the DVD encryption code effectively prevents media literacy teachers and learners from gaining access to media clips for various educational purposes. Under the current law, all these examples of "ripping" DVDs are illegal.

What steps are you taking to overturn those restrictions?

Every three years, the Copyright Office of the Library of Congress considers exemptions to the law for groups or individuals who can prove that the law substantially and adversely affects their ability to make lawful, non-infringing uses of copyrighted works. These exemptions last for three years. In 2006, Peter DeCherney, a professor of film at the University of Pennsylvania, got an exemption on behalf of film professors nationwide, enabling them to rip audiovisual works included in the educational library of a college or university's film or media studies department for the purpose of making compilations of portions of those works for educational use in the classroom. Sadly, this exemption does not apply to media literacy educators, who may be teaching in college English, history or fine arts classrooms, or in schools of education, or in K-12 settings, or in youth media or other non-profit organizations. It does not apply to students who may want to use film excerpts for class assignments.

How broadly or narrowly do you seek to define an exemption?

With the help of student attorneys at American University Washington College of Law, I have submitted a petition to the Library of Congress Copyright Office requesting an exemption for teachers to circumvent the technological protection measures of DVDs that illustrate and/or relate to contemporary social issues, when used for the purpose of teaching the process of accessing, analyzing, evaluating, and communicating messages in different forms of media. This petition also requests an exemption for students to use DVD clips for specific educational assignments, including student media productions. Student media production is an essential component of media literacy education.

Does current copy protection technology restrict practices that are reasonably construed as falling under the doctrine of fair use?

Yes--that's the primary criticism of the DMCA, and it's why the Library of Congress Copyright Office grants exemptions. The creation of compilations for educational use is legal under the doctrine of fair use. Whether a teacher is creating a compilation or a student is producing a video class assignment, the intended use is for "criticism" and "comment," two uses singled out for protection under the law.

Right now, DRM restrictions make it impossible for educators to make a "transformative" use of copyrighted material. Transformative work uses copyrighted materials, but adds something new, with a further purpose, or different character, altering the first with new expression, meaning or message. Transformative uses are considered to be legal under the doctrine of fair use.

Media literacy educators' use of copyrighted materials is inherently transformative, because our uses of copyrighted content are not for the same intrinsic purpose as the one the copyright owner intended. For example, think back to that professor who uses a series of clips focused on the representation of newspaper editors using excerpts from All the President's Men, Absence of Malice and The Paper. The original purpose of these films was for commercial entertainment. The professor's purpose is educational, as the clips are used to heighten student awareness of how media representations of the newspaper industry have changed over time.

In general, media literacy educators use copyrighted content to (1) illustrate key concepts of media literacy, (2) to deconstruct and critically analyze media messages, (3) to recognize and examine specific production techniques employed in moving image media, (4) to explore economic, political, or social issues or the cultural values depicted in the representation, or (5) as part of the process of building skills and knowledge through the creation of student-produced works to demonstrate those ideas and techniques.

Why couldn't classroom teachers use older media, such as VHS, which are more open to manipulation?

The video home cassette (VHS) format is becoming less and less effective for 21st century students. Have you ever tried to make a compilation tape with VHS? It's clumsy and complicated--and the quality of the image is substantially degraded. Plus, it's no longer possible to find contemporary film works in VHS format, since it has been obsolete since 2006. Many teachers and students do not even have a VHS player/recorder in their homes. Since media literacy educators depend on making rich connections between the classroom and the culture, contemporary content is important in our work.

Why can't they use materials which are under Creative Commons license?

Teachers and learners can and do use materials which are available under Creative Commons (CC) licenses. But CC licenses do not substitute for or replace the need for the doctrine of fair use. Fair use explicitly protects users. It gives users the ability to use excerpts from any copyrighted work under some conditions. Fair use enables us to use excerpts even from dominant cultural texts in our culture, the ones which are massively popular and produced by huge media companies like Disney, Viacom and Time Warner.

In fact, fair use is the safety valve that prevents copyright law from being a form of private censorship. Without fair use, copyright law itself would probably be unconstitutional. The doctrine of fair use enables people to use all types of copyrighted materials without payment or permission when the private cost to the copyright holder is outweighed by the public benefit of the use.

How do educators claim fair use? You simply use copyrighted works after making an assessment of the particular context and situation of the specific use of the work. There's nothing formal or official to "do" to claim fair use. You do not have to ask permission or alert the copyright holder when considering the use of materials that are protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims.

What can readers do if they want to lend their support to your efforts?

Act soon. For a 30-day period, the Library of Congress Copyright Office invites comment on the petitions received regarding DMCA exemptions. Has the DMCA law substantially and adversely affected your ability to make lawful, non-infringing uses of copyrighted works for media literacy education? Share your story and make a difference. Comments can be submitted online and must be received by February 2, 2009 at 5 p.m. EST.

Renee Hobbs is a Professor in the Department of Broadcasting, Telecommunications and Mass Media at Temple University's School of Communications and Theater where she founded the Media Education Lab. She is interested in all aspects of the intersections between media studies and education, with a particular interest in the pedagogy and practice of media literacy education in K-12 settings. She has created many multimedia curriculum materials, including My Pop Studio, an online play environment for girls 9 to 14. She is the author of Reading the Media: Media Literacy in High School English (2007, Teachers College Press).