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Why Video Remix Creators Need a DMCA Exemption

Legal Analysis by Fred von Lohmann

If you are a vidder, a movie trailer mashup creator, YouTube movie critic, or anyone else who needs to take clips from DVDs in order to make an original remix video, you might be interested in the hearings held last week before the U.S. Copyright Office, where EFF and the Organization for Transformative Works squared off against the MPAA and DVD-CCA.

The MPAA says that ripping from a DVD is always illegal under the DMCA, even if it's done for the purpose of fair use. Since the Copyright Office is empowered to grant three-year exemptions to the DMCA, EFF has proposed a DMCA exemption for noncommercial remix creators.

At last week's hearings, the MPAA stuck by its old argument, saying that remix artists should just camcord off a flat screen TV (!) if they need clips. They even made a video showing how it's done!

After this MPAA demo, Georgetown Prof. Rebecca Tushnet, representing the Organization for Transformative Works, did a great job explaining why this is absurd. I did a YouTube video remixing her testimony with the MPAA camcording video, but here's an excerpt:

What we have here is essentially a digital literacy test and a digital poll tax imposed on fair use. The literacy test, as you may recall, required prospective voters to interpret an often arcane provision of the law. Here, the test proposed is that they understand that a digital file created in one way is illegal, while a similar, albeit degraded, digital file created another way is fine.

Then there’s the poll tax: you have to purchase the proper equipment to create the second digital file. It’s expensive and nonstandard for an individual artist—we were offered the prospect of using a $900 camera, plus a several-hundred-dollar tripod, plus a large flat-screen TV in a large, completely darkened room. The noncommercial artists we represent are often pink-collar workers; $900 is regularly more than a month’s rent for them; it would be a crippling requirement. And they don’t ever get paid for the works they create. This is not an investment for them. This is their free speech; this is how they react to popular culture—addressing it, critiquing it, changing it.

And the poll tax is inherent in the responses from the opponents of an exemption: their argument that camcorders somehow preserve the technology inherently presumes that the camcorder solution is one that won’t be used by fair users and therefore fair uses will be suppressed. To the contrary, the possibility of camcording proves that the proposed exemption will not cause any harm to the opponents. They say camcording is easy and is good enough to watch. In that case, that’s the mode pirates will use. They cannot maintain that camcording is a substitute for fair use clipping and also that the exemption will degrade protection for CSS compared to camcording.

We got rid of the literacy test and the poll tax because they deterred people from participating –people whose voices weren’t heard otherwise. We did this even though some brave people defied the laws and persevered. Some even managed to register and vote. The problem was all the people who didn’t have the time or the energy or the resources to persevere, and all those who looked at the costs and didn’t even bother to try. That’s the problem here.

If you care about remix creativity, it's worth reading Prof. Tushnet's entire testimony.

The Copyright Office is expected to rule on EFF's proposed DMCA exemption in October. UPDATE