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Rebecca Tushnet has posted a transcript of a hearing on the DMCA exemption that allows makers of non-commercial remix videos like vids and AMVs to circumvent the DRM on DVDs (something that's technically illegal) so they can create quality works with no more hassle than necessary. Along with the Electronic Frontier Foundation, The OTW was one of the organizations who helped get that exemption in 2010, and now they're fighting to have it renewed, because it was only valid for three years. (This page has all the links about how all this has been unfolding.)

The post includes the full text of Tushnet's own remarks, and a transcript of the remarks made by other proponents and opponents of the exemption. It's a great read overall, because it touches on so many reasons why DRM makes no sense for vidders - reasons that are nearly all applicable to several other fannish media as well. But the post is a bit long, so here are some snippets.

One well-known problem with copyright and technologies like DRM is that the whole maze of rules and prohibitions is too complicated for regular users to understand, and often counter-intuitive too:

I think it’s worth spending some time talking about what lines we can expect artists to understand, because I think the opponents have some misconceptions about how people who don’t do copyright law for a living can reasonably be expected to think about the practice of taking short clips for use in creating new works. People don’t understand counterintuitive rules, and the rules without an exemption are counterintuitive.


The broader point is that people (highly experienced lawyers among them) generally try to figure out what makes sense and guide their behavior thereby. It does not make sense to a non-copyright lawyer that a fair use might still be in violation of the anticircumvention law, and so they don’t think of it or even believe it.

Because it's all so complicated, demanding that people not create digital art unless they're completely sure that what they're doing is fully legal means unfairly silencing and shutting out anyone who isn't an expert. It's virtually impossible for an individual vidder to make a reasonable judgement about whether or not their vid would qualify as fair use. Chilling effect, and so on. Tushnet explains exactly how complicated this can get:

This dynamic—where the alternatives don’t make sense and therefore provide no practical alternative to circumvention, is one that I’ve called a “digital literacy test,” like the classic literacy tests used to disenfranchise minority voters in the past. And this problem is enhanced by further uncertainty surrounding the supposed alternatives. First there’s legal uncertainty: We aren’t worried about being sued by AACS or DVDCCA. We’re worried about the studios, and it’s not clear that Mr. Metalitz can bind any individual studio; even if he could, as far as I can tell the major anime producers aren’t members of the MPAA, and there’s a huge genre of anime vidding, as described by Mimi Ito and by our reply comment.

There's not just legal hurdles, but also technological ones. Back when the exemption was first discussed, opponents argued that vidders could just use screen capture technology instead of ripping DVDs. They're using the same argument again this time, and once more, the OTW argues that screen capture involves a loss of quality that significantly hampers the artistic uses that vidders can put footage to. Also, screen capture is unreliable and forces people to jump through a lot of technological hoops, each of which may present weird problems at unpredictable times. This technological uncertainty has a chilling effect of its own.

And I haven’t even mentioned the biggest problem with screen capture from an artist’s perspective, which is whether it works. And let’s talk about basic functioning first, then artistic success. As our comment and the experiences of others indicate, whether screen capture even produces an output is unpredictable depending on the particular DVD, the setup and the particular program.


This isn’t a matter of convenience; in order to do what the opponents want, a vidder would have to have both a Mac and a PC, and five programs in case one works where the other doesn't. This would function as a sort of digital poll tax for someone who wants to comment on culture.

The opponents concede that screen capture produces lower quality, which among other things contributes to the difficulty of explaining the rules to a non copyright lawyer in the absence of an exemption. We don’t generally tell our artists that they have to use bad tools.

And the alternatives offered by studios, like clip licensing services, are simply not actual alternatives:

I should also mention that clip licensing services are completely inadequate—studios offer a few clips of the parts that they think are important or cool for use as promotional tools. By contrast, vidders take films and shows apart and focus on the parts they think are important, or sexist or racist, or important because they're sexist or racist. Take the clips of sexual exploitation and violence that Giandujakiss uses to critique Dollhouse, or the footage that Thingswithwings uses to identify and critique the repeated trope in popular culture, which she tracks across over thirty different sources, in which harm to a woman is only important because it gives her man a reason to become a hero: those clips are never going to be offered to remixers, and even the limited clips available for embedding can’t as a technological matter be edited in order to comment on them; even if they were editable, they also invariably have restrictive licenses that prohibit offensive or critical uses—precisely the uses that are the most fair.

Finally, all this ultimately boils down to whether or not we want to give lawyers the right to judge the merits of creative works:

It’s unwise, as a matter of respect for authors, to say, it’s true that these are transformative works and it’s true that you made them to communicate a message rather than for profit, but you nonetheless don’t deserve an exemption because people outside your artistic community believe that you could have made a less beautiful video that works almost as well. A core reason copyright has a nondiscrimination principle is that it’s not a great idea for lawyers to judge the merits of art.

Also, good remark from Corynne McSherry of the EFF:

W/r/t this exemption, reams of paper and hours of testimony. What we haven’t had: evidence of harm. Noncommercial videos too. We’ve heard speculation that copyright owners might feel uncomfortable, but that’s entirely speculative; we’ve heard that digital distribution depends on DRM, but this exemption doesn’t bar DRM; just takes away the Sword of Damocles for fair use.

The post also contains some interesting quotes from opponents of the exception. But since I'm not 100% certain that I'm following the write-up of that discussion correctly, I'd suggest checking out the post itself.

(There's a very amusing moment when vidder Tisha Turk explains pixels to a lawyer who opposes the exemption. I've never been near a video editing program, but even I know the basics of how pixels work. The level of technical expertise that opponents are bringing to the discussion doesn't inspire confidence.)

Date: 2012-06-05 08:05 am (UTC)

anehan: Elizabeth Bennet with the text "sparkling". (Default)
From: [personal profile] anehan
Heh, that pixels story is pretty telling, I think. I've noticed that usually the most vocal opponents of things like this or like bringing the copyright law to the 21st century are people who have very little technical expertise.


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