Update on DMCA Exemption for Fan Videos

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Last week OTW Legal joined with the Electronic Frontier Foundation to file comments on the U.S. Copyright Office’s rulemaking on Section 1201 of the Copyright Act. This filing explains why noncommercial remix videos are fair use and should receive an exemption from copyright restrictions which make it illegal to break encryption on visual formats such as DVD, Blu Ray and streaming video.

At the end of this month, current and former OTW staffers Francesca Coppa, Tisha Turk, and Rebecca Tushnet will be testifying in front of the Copyright Office about why the current remix exemptions should be renewed and expanded to cover Blu-Ray. The opponents of an exemption argued that fan videos aren’t fair uses, but they didn’t formally oppose the renewal of the exemptions for DVDs and streaming which we won in 2012. This means those exemptions should continue, though the Copyright Office still needs to rule in our favor despite the lack of opposition. The fact that the MPAA and other opponents now recognize that they have no good arguments against the existing exemptions for DVDs and streaming video also demonstrates the importance of fans having a voice consistently representing them in legal discussions about fair use.

As the document states:

    “Opponents seek to undermine the 2014 examples by dismissing them as “entertainment” and suggesting that such videos are less likely to be fair. This is nonsense.

    Opponents may not understand the values and context of the work, but that failure suggests only the importance of not putting them (or anyone else) in charge of vetoing such uses. “‘As Justice Holmes explained, ‘[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.’”

Many vidders helped us explain why fan videos need high quality source, including Blu-Ray source, and we thank each of them for their support.

All of OTW Legal’s filings on copyright cases can be accessed from their project page on the OTW website. We will continue to keep fans informed of developments.