Imagine a person who decides to make a Downfall video, using a scene of Hitler receiving bad news to mock some current event. Assuming this is her first attempt at a remix, she might do some searches to figure out the best way to go about it. She will easily find guides online showing her how to use various software programs—many of the alternatives are free—to rip clips from a DVD and import them to her video editing program to create her remix.
Asked about copyright issues, she might say that what she is doing is a fair use allowed by copyright even without the owner’s permission: it is noncommercial, uses only a portion of the movie she is remixing, offers new meaning that cannot be found in the original, and does not interfere with any market the copyright owner wants to participate in. And she would be right.
The only problem is that, until recently (and potentially starting again in 2012), U.S. law made her method of remixing illegal under the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). Circumventing the "access controls" of a commercial DVD—the code that tells it to work only on a licensed player that does not allow any copying, no matter how minimal—was unlawful regardless of whether the purpose was to make a fair use. To make matters worse, the DMCA applied only to particular ways of getting those fair use clips: someone who set up a separate camera to film the screen on which the DVD was playing would not be violating the DMCA, even if he filmed the whole movie. Though the film studios touted this as an alternative to circumvention, they also pressured the federal government and many states to enact laws making using a camcorder in a theater illegal, so that one woman was jailed for two days for filming her sister’s birthday party, which involved a trip to see the blockbuster The Twilight Saga: New Moon.1
The Digital Millennium Copyright Act created a trap for the unwary.
Moreover, the Copyright Office has also stated that a person who used screen capture software to record a DVD’s output as it played would not be subject to DMCA liability (though major copyright owners are not prepared to agree with that conclusion—they say that using screen capture might violate the DMCA). Under this bizarre system, only using the standard, widely available programs like DVD Decrypter for making clips would break the law, even if the output of the camcorder version and the screen capture version looked the same as the decrypted version.
The Digital Literacy Test and the Digital Poll Tax
The DMCA created a trap for the unwary. Indeed, someone who downloaded a full unencrypted movie from an unauthorized source might be better off, legally speaking, than someone who circumvented the controls on a DVD she had paid for to get 30 seconds’ worth of clips, because at least the former would be able to argue that fair use justified her conduct. Historically, the literacy test required prospective voters to interpret an often arcane provision of the law, asking questions irrelevant to the capacity to vote. Under the DMCA, fair users needed to understand that a digital file created in one way is illegal, while a digital file of the same movie created in another way is legal. Yet the issue of how to define and identify a circumvention technology has no relation to artistry or to fair use—nor even to deterring copyright infringement, given the alternatives discussed previously.
Then the digital poll tax kicked in: remixers were supposed to use a camcorder or screen capture software, both of which often produce degraded results. We do not usually tell artists they have to use bad materials to make their creative works, even in the name of protecting previous artists. Visual quality can be especially vital to cultural critics. If pop culture has luscious imagery, and critics have to speak in hard-to-watch forms, their already-marginal work is further hampered by looking incompetent. Ironically, camcorders and screen captures can work for making first-generation copies that are good enough to watch—and thus passably satisfying for true pirates—but not good enough to survive the multiple generations of digital manipulation and editing often involved in a remix, since each iteration involves some image degradation just as it would in analog editing. For example, screen capture tends to produce dropped frames, making time editing all but impossible. Thus, the DMCA hits hardest at transformative, critical uses by people interested in conforming with the law, and does the least damage to pure copiers.
The poll tax also came in the literal financial expense of using the camcorder setup recommended by major copyright owners for making clips: hundreds of dollars on a separate camera, a tripod for stability, a perfectly dark room to prevent light pollution, and a large TV. In combination, the qualitative and financial burdens imposed by compliance with anticircumvention law erected profound barriers to effective use of video clips, for anyone who managed to learn about them.
The DMCA hits hardest at transformative, critical uses by people interested in conforming with the law.
None of this was difficult to predict when the DMCA was enacted, and from the beginning critics denounced its effects on fair use. Courts, however, considered the structural disadvantages created by the DMCA too hypothetical and general to justify any limits on the scope of the law.a
Rulemaking as Safety Valve
This legal regime had particularly damaging effects on members of marginalized groups who are already likely to have limited resources and to be uncertain about expressing themselves. There is a narrow avenue for relief: the DMCA provides for a triennial rulemaking procedure allowing the Librarian of Congress to create temporary exemptions to the ban on circumventing access controls where the ban is harming noninfringing uses of copyrighted works. Although the Librarian initially accepted only extremely limited proposals, leaving most fair uses unprotected, in 2006 it allowed media studies and film professors to circumvent DVD encryption to use clips in teaching. Building on this exemption, representatives from the Organization for Transformative Works (OTW)—on whose legal committee I serve—testified in the most recent DMCA proceedings on behalf of noncommercial remix artists, supporting an exemption proposed by the Electronic Frontier Foundation.
Fair use remixes abound online, and we submitted many examples. For nonlawyers, American University’s Center for Social Media has developed a set of best practices for fair use in an online video, offering comprehensible rules that require good judgment, but not a lawyer’s services, to apply.2
One reason so many laypeople are dismissive of copyright law is because it is counterintuitive and arcane, resulting in seeming unfairness and futility; the anticircumvention provisions are a good example of that. While they encourage disrespect from some people, incomprehensible rules also deter risk-averse remixers who are vaguely aware of the DMCA from making fair uses. Even the ones who continue may find themselves unable to assert fair use defenses for fear of DMCA liability. Some remixers have received takedown notices and wanted to make fair use claims so their works could be restored, but decided they could not because they were unsure about the method they used to capture the clips.
Hiding the (Legal) Wiring
The solution, as a British government report put it, is to "hid[e] the wiring"—to simplify copyright law so that it comes into better alignment with ordinary logic.4 Fortunately, the Copyright Office agreed with these arguments, at least in part, in its most recent rulemaking. The rulemaking allowed circumvention to access content on DVDs "when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use" for certain educational uses by professors and film students, documentary filmmaking, and noncommercial videos.5 Notably, that last option not only covers most YouTube remixes, but also most educational uses, even those not allowed by the first, limited educational exemption. As long as they reasonably believe that circumvention is necessary—and given the expense and flaws of the alternatives, it will routinely be necessary—noncommercial video artists can remix at will.
There are several lessons from the battle to keep fair use from being eliminated via technological means.
The creativity of remix culture comes from many far-flung individuals, some of whom invent or reinvent remix for themselves without even knowing about other remixers and others of whom work within existing communities, aware in varying degrees of the artistic traditions they are updating, continuing, and disrupting. But when it comes to dealing with the effects of law on creativity, individual creators need organized representation. Otherwise, as copyright policy-making has repeatedly shown, their interests will simply be ignored. Henry Jenkins, a leading scholar on the interaction of corporate and individual creativity in the digital age, argues that media fandom, from which many remixes derive, is "the experimental prototype, the testing ground for the way media and culture industries are going to operate in the future."3 If so, then without further activism, "testing ground" might be a far-too-apt metaphor, with the copyright industries trying out their best new heavy ordnance—technological and legal—on individual remixers.
There are several lessons from the battle to keep fair use from being eliminated via technological means. The rulemaking process of the DMCA is far from a panacea. Among other things, exemptions will be lost if advocates do not show up to argue for them every three years, or if the Copyright Office changes its mind about the value of particular uses. Also, distribution of circumvention technology remains unlawful, even though people entitled to an exemption are unlikely to be able to accomplish circumvention on their own and even though the copyright industries admit that this ban has failed. Regardless, since it is easy to find circumvention technology and not unlawful to possess it, people entitled to circumvent can easily find the means to do so, but this remaining barrier is a reminder of the costs of poorly thought-out lawmaking.
The U.S. has successfully pressured many of its trading partners to adopt U.S.-style anticircumvention provisions, generally without U.S.-style limitations and exemptions. The U.S. experience with DMCA overkill demonstrates that the DMCA as written is not right for anyone, and that other countries should be wary of copying a law that suppresses artists and educators. Laws will be made with or without the input of those who understand what technology enables (and threatens); the challenge is to ensure that we do not, in aiming at commercial pirates, hit the fans and critics who are trying to participate in a cultural conversation instead.
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