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!

Announcement, Legal Advocacy, Vidding

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