OTW Secures DMCA Exemption from U.S. Copyright Office

The OTW is proud to announce an important legal victory for fan vidders and other makers of noncommercial remix videos, achieved in conjunction with our friends at the Electronic Frontier Foundation: the Register of Copyrights has recommended that the Librarian of Congress maintain the vidders’ exemption from certain provisions of the Digital Millennium Copyright Act (DMCA).

As you probably know, the OTW is committed to the legal position that fanworks, including vids, generally represent “fair use” of their source material under U.S. copyright law. Although this theory has not been tested in the courts yet, it means that vidders ought to be able to use parts of their source in their works without being liable for copyright infringement. However, since the passage of the DMCA, vidders have had an additional legal problem. The DMCA forbids circumvention of access controls to protected works—in other words, ripping DVDs or source purchased from online services (like Amazon Unbox) to get the source to make the vids in the first place. The statute applies even if the ripper was going to put the source to a legal use, like making a vid. So while a copyright owner might not be able to sue a vidder for infringement, it still might be able to sue her just for accessing the source.

The DMCA is a bad law in general, not only for vidders. Fortunately, every three years, the Librarian of Congress has the responsibility of considering proposed exemptions to the DMCA which are technically necessary for otherwise legitimate uses. This means that individuals whose uses are covered by the exemption will not be legally liable just for circumventing access controls to get the source they need. In the last round, the OTW sought, and won, an exemption for vids. But each exemption must be re-approved each time, and so the OTW had to apply again this year, in the face of industry opposition that was much stronger than before.

Drafting work was done by the Legal committee, and Francesa Coppa, Tisha Turk, and Rebecca Tushnet appeared before the agency to testify. They were able to point to many examples of vids that hinged on access to high-quality source for their full effect, such as giandujakiss’s “It Depends on What You Pay.” And, in the end, the OTW once again persuaded the appropriate official to formally recommend renewal of the exemption—keeping the U.S. safe for vidders.

For those interested you can read the full decision (in PDF format) on the U.S. Copyright Office site or you can see an HTML version at Cryptome.

The application for the exemption is a great example of a project that benefits all of fandom and which would have been impossible without an organization that let us tap our combined resources. The OTW is grateful to all its members, whose support makes its legal work possible, and to the many others who assisted us!

OTW Staff in the News

These past two months have seen a spike in interviews with OTW staff by various media outlets. Here’s a rundown on some of the places online where you can read their discussions about fandom, fanworks, and the OTW.

  • Geek Girl Con did an interview with Anna Zola Miller, who serves on the Open Doors Committee. Anna talks about her increased perception of fandom history, the challenges the project has faced, her favorite archived item, and what she’s feeling fannish about.
  • Board member Francesca Coppa wrote Fandom: Open Culture Vs. Closed Platforms at OrgZine which also brings up the work of Open Doors and looked at the importance of fans’ ability to keep their work from disappearing from online sites. “The social networks of Web 2.0 are mostly for-profit, commercial enterprises; the web is no longer the loose network of university and government servers it was twenty years ago. Fans used to roll their own code and make their own webpages; now others own the ground beneath their feet. And the priorities of these businesses may or may not be the priorities of fans.”
  • Rebecca Tushnet discussed the legality of fanworks with Lauren Davis at io9 which formed the basis of a lengthy piece on this issue, required reading for anyone wanting to debate the topic, and sporting a nifty piece of fan art to boot.
  • Development & Membership staffer Aja Romano is delivering some excellent discussions of fandoms and fannish activities over at The Daily Dot. A notable recent piece provided recs to online sites for people wanting to find the next Fifty Shades of Grey, a badly needed guide if some of the rec lists appearing in the media over this summer are anything to go by.
  • Francesca Coppa and Tisha Turk of the OTW’s Vidding Committee were the guests on talk show Hearsay Culture on KZSU-FM, Stanford, 90.1 FM, a show which focuses on the intersection of technology and society. They discussed their personal histories in vidding, what transformative works and vids are, the work of the OTW, and what our legal team’s effort to secure a DMCA exemption for remixing is all about. Asked what they want the typical non-vidder to do, they exhort listeners to both know their rights and exercise them. (No transcript available).

OTW at the Library of Congress for DMCA

Legal chair Rebecca Tushnet and Vidding committee members Francesca Coppa and Tisha Turk testified at the Library of Congress’s Digital Millenium Copyright Act (DMCA) hearings on June 4, 2012 in favor of a renewal and expansion of the DMCA exemption for Noncommercial Remixers (like vidders and other fan video makers.) Rebecca Tushnet has been liveblogging all the hearings, including the OTW’s testimony, and Tisha Turk is putting her notes and recollections online as well. You can also find copies of our Reply Comment as well as our various exhibits – our revised Test Suite and an Image Gallery comparing DVD-ripped and screen-captured images– linked from our Legal Advocacy page.