DMCA , Fair Use, Documentary Filmmakers and Remixers

On day two of the Copyright Office’s hearings about exemptions to the Digital Millennium Copyright Act (DMCA) , documentary filmmakers and remix artists and their supporters came to Washington, D.C. to show regulators the cost of criminalizing copying of popular culture. (Read about day one where the focus was on Fair Use and educators here.)

To recap, the issue is: The DMCA prohibits breaking of any encryption on copyrighted digital material, even when you have a legal right to the material inside—for instance, a Fair Use right. If you can make a strong case for the need to do so during the tri-annual hearings at the Copyright Office, though, you can get an exemption. Today, documentary filmmakers and remix supporters made their case.

Documentary filmmakers, with the help of lawyer Michael Donaldson and the University of Southern California intellectual property law clinic headed by Jack Lerner, asked for an exemption for documentary filmmakers, production teachers and students, in order to exercise their Fair Use rights and to access public domain material trapped on encrypted DVDs. Gordon Quinn of Kartemquin Films explained why Fair Use is essential to documentary filmmakers and why encrypted DVDs hold much of the material that they need. He heralded the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Then Kartemquin’s engineering guru Jim Morrisette proceeded to show why the solutions of the content industry’s lawyers—shooting off a TV screen or copying from a videocassette—don’t meet broadcast standards. His presentation left no doubt that DVD quality is necessary to get broadcast-standard quality as well as the level of aesthetic excellence professional filmmakers expect. Industry lawyers had little to say, other than that filmmakers had resources to execute the technically complex and expensive workarounds they recommend. They also doubted that filmmakers could de-encrypt only relevant passages, an objection Morrisette dismissed in a sentence. They also provided some quibbles for regulators in the event that they did proceed to grant an exemption—perhaps a sign that they may not fight this exemption.

Remix supporters, coordinated by the Electronic Frontier Foundation’s Fred von Lohmann, argued for an exemption for noncommercial use by anyone who employs Fair Use to create amateur video work such as the female-dominated "vidding" that re-imagines popular TV shows such as Firefly and Battlestar Galactica. Profs. Francesca Coppa and Tisha Turk, both of whom study and practice such work, testified to the importance of access to high-quality popular culture in order to critique, comment and "talk back" to it. Law professor Rebecca Tushnet, one of the authors of the Code of Best Practices in Fair Use for Online Video, heralded the Code and had some of the day’s best lines. She called the DMCA restrictions a "digital literacy test" and the requirement to use expensive workarounds as a"digital poll tax." She ridiculed the notion that video makers could work with degraded video images: "We don’t tell other artists they can only use crayons, not pencils." The industry lawyers did not bother engaging the question of the social value of vidding or remixes. They simply objected to the notion of an exemption that potentially included anyone, rather than the narrowly targeted exemption categories that have been used to date.

Possibly most interesting to Fair Use supporters in the two days of the hearing was that no industry lawyers cast any aspersions on the Fair Use codes that were frequently referenced. Although they repeatedly expressed doubt that Fair Use could be easily determined, they steadfastly avoided addressing the standards documents that have enabled—as Gordon Quinn boldly said--creative communities since 2005 to reclaim their Fair Use rights. This is an indirect compliment from representatives of large content holders—which have invested heavily over the years in discouraging makers from employing Fair Use—to the sturdiness of these codes.