The Right to Decrypt Media Needs to Be More User-Friendly

by Patricia Aufderheide

A new Center for Media & Social Impact study shows that media creators struggle to understand and use important copyright exceptions critical to their work. Education, simplification and generalization would all help.

Three American University researchers in the School of Communication—Professors Patricia Aufderheide, Aram Sinnreich and Joseph Graf—conducted a survey designed to find out how familiar the terms of decryption exemptions of the Digital Millennium Copyright Act (DMCA) are to those for which they were designed. DMCA exemptions to the law’s ban on decrypting media are given to categories of users and uses, within fair use.

Exemptions are permitted, among other uses, for decrypting short amounts of an audio-visual work for commentary or criticism if you are:

  • A documentary filmmaker
  • A noncommercial video maker
  • A scholar (teacher or student) making an e-book
  • A teacher in the course of teaching.

The survey was distributed to documentary filmmaking organizations, film, communications and media literacy academic associations, and an association of people making non-commercial videos, as well as leveraging social media. They were overwhelmingly professionals, with 87% having four year degrees and 59% higher degrees.

Ignorance is expensive.

We harvested interim results after one week. Two hundred and thirty-six people completed the survey. These results show:

  • Even among people who should know, ignorance is widespread. These professionals have good reason to know about decryption exemptions because of their professional practice or their role as students. Fully one-quarter of them haven’t heard of the DMCA at all. Two-thirds (63%) don’t know that decryption exemptions exist.
    • This is notable, given that respondents who completed the full survey were in the primary category of use for the exemption, and could be expected in a digital environment to encounter a need for decryption in routine work.
  • Less than a fifth of respondents (17%) have used the decryption exemption, to their knowledge.
  • Knowledge about the exemptions is low. Only 29% say they “strongly” or “somewhat” agree that they “understand DMCA exemptions.”
  • Confidence in applying the exemptions is lower. Only 16% say they “strongly” or “somewhat” agree that they are “confident using DMCA exemptions.”
  • Not using the exemptions directly affects their work. Some 31% have avoided using copyrighted material because of encryption, and 20% have changed their work.

Education matters.

Although creators in the core categories for which exemptions have been designed are often ignorant of their utility, they quickly can apply knowledge once given to them. The survey provided them language of the Act and gave them simple scenarios within their field of practice.

In applying a DMCA exemption given the language, users are both accurate and confident. Generally, more than ¾ of respondents correctly made the call in scenarios applicable to their professional category:

  • Documentary filmmakers, asked about whether an online film reviewer could decrypt to compare two brief movie scenes, correctly answered yes 76% of the time, and 70% were somewhat to very confident of their answer.
  • Noncommercial videomakers were asked if an activist could decrypt to make a supercut of female characters rolling their eyes, as a political commentary. Some 83% correctly said yes, with 56% somewhat to very confident.
  • Teachers and students were asked if a scholar could decrypt small amounts to add to commentary in an e-book. 82% correctly said yes, and 58% were somewhat to completely confident in their decision.
  • Teachers and students were asked if a teacher/teaching assistant could decrypt small amounts for use in teaching a MOOC (large online course). Some 76% correctly voted yes, and 69% were somewhat to completely confident in their decision.

Why it matters and what helps.

The existence of the DMCA exemption language is not well known, and even professional users are intimidated by the prospect of using it. The under-utilization of exemptions leads to self-censorship and unnecessary effort to change work. Education helps potential users employ the law, however. Their confidence levels might increase with further education.


Documentaries in a Dark Time: IDFA at 30