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
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.