giandujakiss: (fandom)
[personal profile] giandujakiss
Yay, we won!

What all of this is about ([personal profile] 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!

Date: 2012-10-25 11:26 pm (UTC)
ide_cyan: Dalbello peering into a screen (testing)
From: [personal profile] ide_cyan

Date: 2012-10-25 11:29 pm (UTC)
absolutedestiny: (Default)
From: [personal profile] absolutedestiny
Fantastic news. Thank you so much for putting yourself out there, too. Thankfully, this time, sanity prevailed.

(and yes, I do believe I said that about DVDs :P)

Date: 2012-10-25 11:30 pm (UTC)
laurashapiro: a woman sits at a kitchen table reading a book, cup of tea in hand. Table has a sliced apple and teapot. A cat looks on. (Default)
From: [personal profile] laurashapiro
Thank you for your clear summary of the situation, and for all you did to make this possible!

Date: 2012-10-25 11:47 pm (UTC)
yhlee: wax seal (Default)
From: [personal profile] yhlee

Date: 2012-10-25 11:53 pm (UTC)
oyceter: teruterubouzu default icon (Default)
From: [personal profile] oyceter
Whoo! (Also, the OTW/EFF's reply to the industry's reply seems to be mislinked? OTW/EFF... the new Yuletide fandom!)

Date: 2012-10-26 12:02 am (UTC)
oyceter: teruterubouzu default icon (Default)
From: [personal profile] oyceter
Ooo thank you!!

Date: 2012-10-26 12:26 am (UTC)
umadoshi: umadoshi kanji (Rin smiling (kawaiiayu))
From: [personal profile] umadoshi
That's fantastic! *^^*

Date: 2012-10-26 01:15 am (UTC)
thirdblindmouse: The captain, wearing an upturned pitcher on his head, gazes critically into the mirror. (Default)
From: [personal profile] thirdblindmouse
You are a brave person who has done a good thing for our fandom by putting your vids forward like that. Thank you! And hurrah Team Us for winning! I am much more comfortable with the idea of having to defend my work on the basis of normal copyright law than going up against DMCA irrationality.

I think it's delicious that they went and chose Der Kommissar for their "no commentary" counterexample. Maybe the lawyers involved love James Bond so completely and uncritically that they cannot fathom a James Bond vid saying anything but "YAYYAYYAY"? ;)

Date: 2012-10-26 02:04 am (UTC)
cofax7: climbing on an abbey wall  (Default)
From: [personal profile] cofax7

Date: 2012-10-26 03:01 am (UTC)
ironed_orchid: pin up girl reading kant (Default)
From: [personal profile] ironed_orchid
That's pretty awesome.

Date: 2012-10-26 04:42 am (UTC)
alexseanchai: Blue and purple lightning (Default)
From: [personal profile] alexseanchai
AWESOME. how do I break DRM on Amazon Unbox video? 'Cause there is a Natasha vid in my head that would like out sometime this decade (be nice if I had a song, but that's a different problem), and I've got physical rippable media of Avengers but my Iron Man 2 copy is Amazon Unbox.

Date: 2012-10-26 02:14 pm (UTC)
alexseanchai: Blue and purple lightning (Default)
From: [personal profile] alexseanchai
Thank you!

Date: 2012-10-26 05:58 am (UTC)
paceus: Katchoo from the comic Strangers in Paradise (Default)
From: [personal profile] paceus
Thanks for this summary!

So did they believe that your vid the industry claimed wasn't fair use, was?

Date: 2012-10-26 07:25 am (UTC)
monanotlisa: Diana as Diana Prince in glasses and a hat, lifting the rim of the latter rakishly. HOT! (Default)
From: [personal profile] monanotlisa
Thanks for your post! I will cheerfully read it later -- a novice in this area (if not others).

Date: 2012-10-26 11:06 am (UTC)
From: (Anonymous)
As a long-time watcher of your vids and lurker, can I just express my deep, deep gratitude for your hard work to protect the fan community. I will donate to OTW today.

Date: 2012-10-26 03:32 pm (UTC)
jb_slasher: ossi väänänen, lasse kukkonen; team finland (juggernauts)
From: [personal profile] jb_slasher
Definitely yay! :D

Date: 2012-10-26 04:34 pm (UTC)
kass: "let love be your engine," image of Kaylee and of Serenity (let love be your engine)
From: [personal profile] kass
Thank you both for this excellent summary of what happened and what it means, and for your willingness to put your work out there. You are awesome and I am so glad this happened.

Date: 2012-10-26 07:16 pm (UTC)
nagasvoice: lj default (Default)
From: [personal profile] nagasvoice
Came over on a link from morgandawn, whose work I also admire. Thank you for posting this, it's a great explanation of the context.

Date: 2012-10-27 01:08 pm (UTC)
lian: extreme, cropped close-up of JGL smiling (jgl_happiness)
From: [personal profile] lian

And thanks for the great summary!

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