What's the point of a revolution without general copulation?

Buffy vs Edward receives a DMCA takedown notice at YouTube.

Basically, YouTube has made deals with a lot of major copyright holders. When someone else uploads their content - songs, clips, etc - they can choose to "monetize" that upload, which basically means run ads alongside it, rather than insist that it get taken down. This is supposed to make everyone happy - the original fan who uploaded the material doesn't get a takedown notice, and the copyright holder gets to make money.

But that's only supposed to be for uploads that are - or would be, if the copyright holder did not agree to allow them to stay on the site - infringing. If the upload is fair use, then by definition, it doesn't infringe on anyone's copyright, and the copyright holder has no right to monetize it.

So, the creator of Buffy vs. Edward discovered that the owners of Twilight had claimed his video and were running ads alongside it. He rejected the ads, and in response, they issued a takedown notice, which he is disputing.

Feminists make Victoria's Secret anti-rape. You're welcome, Victoria's Secret.

Ways To Play It Safe.

(Would it count as fair use, though?)

(via Rebecca Tushnet)

Yay, we won!

What all of this is about (rivkat or anyone else more knowledgeable than myself, feel free to correct me if I get the details wrong):

Under U.S. copyright law, you are allowed to make limited copies of some copyrighted works - or excerpts of copyrighted works - that are deemed to be "fair use." Like, for example, quoting a few lines of a movie or a book in order to write a review. A critical aspect of the inquiry into whether something is deemed a "fair use" is whether it is transformative - whether it changes the original into a new work, especially one that comments on/criticizes the original work. Organizations like the OTW and the EFF have long argued that vids (and other fan works) are transformative and are fair use of the original works. There is very little direct legal precedent about this; though copyright holders may send out the occasional threatening letter, most don't actually sue fans for nonprofit fan creations.

The Digital Millennium Copyright Act (DMCA) has a provision that imposes special penalties for anyone who circumvents the copy protection on electronic media. These penalties - which can be quite onerous - apply regardless of whether the "use" was fair. That is, you could break the copy protection on a DVD to make the fairest-use ever new work, and still be, technically, in violation of the DMCA and subject to very harsh penalties. In other words, your new, transformative work could be totally not infringing on the original copyright, and you'd be subject to penalties anyway. The DMCA imposes penalties for breaking a lock - it doesn't matter why you broke the lock.

But the DMCA has a provision that says that the Library of Congress can create exemptions to these provisions when the situation warrants it. People can petition for an exemption, interested parties can oppose it, the Library of Congress holds hearings, hears testimony, and then makes a decision. Even if they do create an exemption, it has to be periodically renewed, and the advocates have to once again prove their need for the exemption every time.

In 2010, the OTW and EFF scored a huge victory by convincing the Library of Congress to create an exemption from the DMCA for vidders who break the copy protection on DVDs to make vids, if those vids would otherwise constitute fair use of the material. The Library of Congress did not say that all vids are fair use. What it did say is that there was enough evidence that some vids are fair use - the OTW and EFF showed them examples of several explicitly political vids - to justify creating an exemption for vids that would otherwise constitute fair use of the material.

In 2012, the OTW and EFF had to petition again to have the same exemption renewed. At the same time, they also petitioned to expand it to cover people who break copy protection on digital downloads, like from iTunes or Amazon Unbox. This is really important because - as I believe AbsoluteDestiny pointed out at some point - DVD technology won't be around forever; sooner or later, everything will be digital downloads.

But the reality was, there was a new Register of Copyrights, one who was on record as being more hostile to fair use rights, and the OTW and EFF didn't have that much hope they'd win the exemption.

In support of their petition, the OTW and EFF filed this petition. The industry opposed it with their own submission, and the OTW and EFF filed a reply. All of these documents discuss specific vidders and vids, and the reply in particular has lots of quotes from vidders, so they make for interesting reading. There were also hearings, where OTW members testified about vids, and the need for high-quality footage that could only be obtained by breaking encryption.

(I posted about this under FLock here and here after I kind of got drawn into it - my vid, It Depends on What You Pay, was used by the OTW/EFF - with my permission - as an example of a fair-use vid made with Amazon Unbox footage; in response, the industry apparently went to my website on their own, chose a vid they believed was not fair use and did infringe on copyright, and listed it as an example of an infringing, unprotected vid in their submission. Which was ... unnerving.)

Anyhoo, today, the OTW and EFF emerged victorious - as did we all. They won both the renewal of the exemption for ripping DVDs, and the new exemption for breaking copy protection on digital downloads. Technically, this is a report and recommendation of the Register of Copyrights to the Librarian of Congress, but the Librarian for the most part follows these recommendations, so it's great news.

Now, this does not mean that vids are protected from copyright claims - this exemption is an exception to the extra penalties imposed by the DMCA for breaking encryption. And the exemption is limited - it assumes that the vids are noncommercial (although they define noncommercial to include things like vids made for charity auctions or other similar commissions), that the vids and the clips used are very short, and that the vids are made for the purpose of comment or criticism (obviously, that's vague - OTW-types will define that broadly; the industry will define it narrowly).

But it's still a huge deal, and part of the really important project (I think) of recognizing fannish works as valuable and according them the legal protections they deserve. And the existence of the exemption explains that the Register believes that at least some vids are fair use, even if the actual ruling here is about the DMCA, and not fair use itself.

So, yay!

Anyone who has downloaded pirated music, video or ebooks using a BitTorrent client has probably had their IP address logged by copyright-enforcement authorities within 3 hours of doing so.

Actually, it's only apparently for the most popular content, but ... still!

The idea that this Romney web advertisement could be the subject of a copyright claim is fucking ridiculous.

I don't know how many of you saw the ad before it was yanked, but it featured Obama singing, like, two lines of "Let's Stay Together" - a capella - and the entire ad was only 00:36 seconds long, as well as being - it goes without saying - core protected First Amendment speech.

Of course, as a work of artistry it was a laughably incompetent response to this Obama ad, so maybe Romney is better off if it disappears down the memory hole, but that's neither here nor there.

ETA: Ars Technica covers this.

When the DC Circuit, in today's opinion (pdf), linked to this Schoolhouse rock video online, did it have any assurance that the video had been posted with the permission of the copyright holder?

(I genuinely don't know - it's Google video. Anyone know?)

Rebecca Tushnet is posting descriptions of the testimony given at the DMCA hearings. As I posted earlier (see also here), these hearings are about whether vidders - and others, like teachers - should be exempt from penalties for breaking copy protection on digital works. The OTW and other groups have already submitted written materials arguing that if a particular vid constitutes fair use under U.S. copyright law, the vidder should also be exempt from penalties for circumventing copy protection. I particularly love Rebecca's description of the trademark attorneys who didn't understand that they could be subject to penalties for ripping clips even for the purpose of submitting them as evidence at a hearing.

Patriotic bootlegging.