Clinic files amicus curiae brief in the Eleventh Circuit Court of Appeals in a major educational fair use case on behalf of professors


Today, the USC Intellectual Property and Technology Law Clinic filed an amicus curiae brief in the Eleventh Circuit in the case Cambridge University Press, et al v. Mark Becker, et al. The brief was filed on behalf of American Association of University Professors, International Communication Association, Modernist Studies Association, Society for Cinema and Media Studies, and Professors Peter Decherney and Tsitsi Jaji of University of Pennsylvania.

In the district court case (Cambridge University Press v. Becker), several publishers brought dozens of copyright infringement claims against Georgia State University (GSU). The publishers argue that GSU’s professors are infringing on their copyright when professors post excerpts of copyrighted materials on electronic course reserves–websites that allow professors to interact with, and distribute materials, to students enrolled in their courses. The court held that, in the majority of the instances, the professors’ use of electronic course reserves did not infringe on the plaintiff’s copyrights and that many of the uses constitute fair use.

The publishers appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. On behalf of four national organizations and two professors–together representing over 48,500 professors, scholars, and media professionals–the Clinic filed a brief as amicus curiae asking the Court of Appeals to acknowledge that fair use protects key pedagogical activities. These activities, such as using copyrighted materials for criticism and commentary, are critically important to the educational mission because they add new meaning to the original works and grow our collective knowledge. The  great weight of case law supports that such uses are quintessentially transformative and highly likely to be fair use.

A copy of the brief can be found here.


Clinic submits reply comment on Orphan Works and Mass Digitization to U.S. Copyright Office

Today, the USC Intellectual Property and Technology Clinic submitted a reply comment to the Copyright Office on the issue of orphan works and mass digitization on behalf of the International Documentary Association, Film Independent, the National Alliance For Media Arts and Culture, Kartemquin Educational Films, Inc., Glen Pitre, and the Tallgrass Film Association. The reply comment emphasizes the need for a comprehensive orphan works solution across all types of works and elaborates on the provisions necessary to adequately protect the interest of all rightsholders, enable potential users to bring critical historical and cultural works to light for the first time, and limit the creation of new orphan works in the future.

We thank the Copyright Office for providing us the opportunity to express our position on this issue and we respectfully urge the Office to continue moving forward on this important issue.

The comment can be downloaded at

Clinic submits comment on Orphan Works and Mass Digitization to U.S. Copyright Office

In October of 2012, the U.S. Copyright Office issued a Notice of Inquiry regarding Orphan Works and Mass Digitization. In response to this inquiry, the USC Intellectual Property and Technology Clinic filed a comment on behalf of the International Documentary Association, Kartemquin Educational Films, and the Independent Filmmaker Project, along with other organizations and individuals in the independent and documentary filmmaking industry.

An orphan work is a work protected by copyright for which the rightsholder cannot be identified or located. When filmmakers wish to license this material to use in their films, they will be unable to contact the rightsholder to obtain permission. Without authorization from the rightsholder, filmmakers are deterred from using such materials because there is a risk that the rightsholder will resurface once use has commenced and may take legal action against the filmmaker for copyright infringement.

The comment articulates the need for orphan works reform to allow independent and documentary filmmakers to draw upon the rich cultural and historical content that is becoming more readily accessible due in part to the growing ubiquity of digital technologies. We urge the Copyright Office to explore solutions to the orphan works problem that will enable filmmakers to make responsible and valuable uses of orphan works.

The comment can be downloaded at

Clinic files comments with USPTO on patent fees

Last week, the USC IP & Tech Clinic filed comments in the US Patent and Trademark Office urging them to rethink their approach to patent review fees.

Clinic Wins Battle on Behalf of Filmmakers, E-book Authors

The Clinic achieved a historic copyright exemption today when the Librarian of Congress determined that documentary filmmakers and multimedia e-books authors may obtain materials from DVD and online media for commentary in their works.

“Encryption and other forms of technological locks have become pervasive in the digital environment, and these locks have special legal protection under the Digital Millennium Copyright Act,” said Jack Lerner, a professor at USC Gould and director of the Intellectual Property and Technology Law Clinic. “That is why today’s exemption is so important—it preserves the ability for filmmakers and e-book authors to use films in criticism and commentary, as they have done for decades.”

Under Lerner’s supervision and in collaboration with co-counsel Michael C. Donaldson of Donaldson & Callif in Beverly Hills, USC Gould students Brendan Charney ’13 and Alex Cohen ’13 drafted lengthy comments and coordinated a nationwide coalition of documentary filmmakers and filmmaker organizations, including the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, and the National Alliance for Media Arts and Culture, as well as several prominent film scholars.

“When I found out that I had been accepted into the Clinic, I never imagined that I would have the opportunity to go to Washington, D.C. and argue in front of the Copyright Office on behalf of such an impressive group of filmmakers and authors,” said Cohen. “I am particularly proud of the Clinic’s role in giving filmmakers and e-book authors access to the exponentially growing number of materials delivered through the Internet that are restricted by digital locks.”

Included in the comments were statements from a variety of filmmakers working on projects that require taking fair use content from DVD, Blu-Ray and online video. A wealth of documentaries, including Kartemquin’s The Trials of Muhammad Ali, American Arab and Mormons Make Movies, require the DMCA exemption, as do a burgeoning group of authors using new tools to create multimedia e-books on platforms such as the iPad and the Kindle Fire.

“Multimedia e-book technology allows authors to express ideas in amazing new ways,” said Charney. “Film scholars can now embed film clips and other media into their books, enabling them to present analysis in book form that had previously been confined to the classroom. Today’s decision means that authors can now explore that technology without the fear of crushing legal liability.”

Without this exemption, many important projects currently in production could not have been made, said Donaldson. “This is a great day for documentary filmmaking and for the future of books.”

The exemption goes into effect Monday, October 28, and will expire in late 2015. The ruling may be found at

Proponent of DMCA exemptions reflects on DMCA hearing experience

Making the Case: DMCA, video and ebooks
by Peter Brantley

cross-posted at:

Yesterday I had the extraordinary opportunity to formally testify before the general counsel of the Copyright Office to obtain a DMCA exemption permitting the Fair Use embedding of video clips in ebooks. This followed on written testimony that was submitted to the Copyright Office. Our panel was led by Professor Jack Lerner of the USC Intellectual Property and Technology Law Clinic.

The right to this testimony is enshrined in the Digital Millenium Copyright Act, which makes breaking “technical protection measures” (or DRM) on digital content unlawful, even if the use of such content is Fair Use. Fair Uses would include cases where authors or filmmakers embed segments for teaching, education, or entertainment. The DMCA provides an escape provision whereby the “Librarian of Congress may designate certain classes of works as exempt from the prohibition against circumvention of technological measures that control access to copyrighted works when such circumvention is done to engage in non-infringing uses of works … .” In order to assist the Librarian, the Copyright Office, which is housed administratively in the Library, holds hearings on applications for exemptions. Permitted exemptions are granted for a period of three years and must be renewed. Exemptions that have been granted in the past include support for jail-breaking phones, allowing the blind to have access to protected ebooks, and support for the use of video clips from protected media such as DVDs.

Our session on ebooks proposed that it should be permissible to “break” the DRM on DVD video sources in order to embed brief video segments into multimedia ebooks; we didn’t apply for the higher-quality Blu-Ray, seeking a relatively low threshold. Nonetheless, this exemption would be useful in a wide number of situations: travel books, cooking, cinema and performance arts, and a wide array of other cases could easily take advantage of an exemption. I was joined in my testimony by Bobette Buster, a famous film scholar at USC, who is seeking to make an ebook that permits her teachings on cinema to reach tens of thousands of individuals, as opposed to the mere tens or hundreds who might be able to attend her classes in person. As multimedia ebooks are expected to see tremendous growth within the next few years, our request seems both necessary and urgent.

My testimony was ably summarized by Professor Rebecca Tushnet of Georgetown University’s Law School, who had testified earlier in the day. Each panelist was restricted to 10 minutes, so I focused on the rapid advances in ebook authoring tools that make it possible to create multimedia books with relatively little technical expertise; examples include Aerbook, Vook, and iBooks Author among others. I also discussed the growing inter-weaving of EPUB ebook and HTML5/CSS3 web standards. The coordination between IDPF and W3C, and the launch of the Readium project to render EPUB files directly in browser without additional software, highlight the growing ability to develop rich, portable content that is easily rendered on a wide range of devices and platforms. I also discussed Mozilla’s Popcorn project, and its pathbreaking support for embedding interactivity within video content.

Alternatives to a DMCA exemption would result in a dramatically deteriorated video quality that consumers would find inadequate. Apple’s retina screens and their successors are rapidly resetting the bar for video quality in portable devices, making even DVD quality video – which is markedly below HD – appear increasingly antiquated. The coalescing of browser vendors around the H.264 video standard, and the looming release in 2013 of the H.265 standard that will support 8K, Ultra HD video highlight the increasingly relentless march of innovation in display hardware and software.

Much of the content that authors seek to use in multimedia ebook projects isn’t available for licensing and couldn’t be used without a DMCA exemption. Even in those cases where a licensing option exists, it is often based on the whole work instead of supporting video clip-level acquisition; this is the same restriction of digital access that a U.S. District Court recently observed in the GSU case on course reserves, brought by the Copyright Clearance Center. And because filmmaking and video distribution is heavily controlled by large corporations, fee structures are premised on the assumption that most licensing would occur between peer commercial actors; they are not set up to support individual authors and creators seeking educational/informational uses. Notably, Bobette Buster’s requests for video clips in her ebook have been rebuffed, ignored, or denied.

The counters from the industry panel in response to our requests were predictable; primary among them is the claim that videotaping a computer display running a DVD’s video is adequate for the kinds of uses we were citing. In addition to the obvious loss of video quality, this fall-back to digital-to-analog downgrading was devastated by our panel’s testimony from film engineer Jim Morrissette, who showed a series of photographs of the business end of three successive models of Panasonic video players, showing the gradual elimination of all analog interfaces. There are very few ways to work with analog input anymore.

One interesting request for clarification from the Copyright Office panel concerned what could constitute an ebook – in other words, were there “narrowing principles” that governed what an ebook could contain, or how it would behave? Our panel emphasized that an ebook is a packaged document containing content whose behaviors are circumscribed by a clearly specified set of constraints. It provided a useful opportunity to stress the importance of IDPF’s ebooks standards in the digital publishing environment.

The Copyright review process will continue for several more months. There may be requests for clarification and other documentation, but hopefully by the end of the year we’ll know whether our request has been granted. I certainly hope so; the world of ebooks will be a lot gloomier without the sparkle of video.


Clinic Responds to Opponents Letter

On Thursday August, 2 2012 the Clinic filed a letter a responsive letter with the Copyright office with regards to exemptions for classes 7D and 7E. A copy of the responsive letter can be found here.

Clinic Responds to Questions from Copyright Office

On Wednesday July, 18 2012 the Clinic responded to questions for the Copyright Office with regards to the Clinic’s Comment on the 2011 DMCA Rulemaking. A copy of the letter can be found here.

Clinic Files Comment for 2011 DMCA Rulemaking

The Clinic in association with Donaldson & Calif filed a comment on behalf of filmmakers and multi-media e-book authors. The Clinic is seeking an exemption from the DMCA’s anti-circumvention measures for these groups. A copy of the comment can be found here.

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