• DMCA Follow-up Answers

    By .allison morris on Středa, 1 September 2010 - 3:48 odpoledne
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    A number of bright and beautiful questions cropped up after we posted about the DMCA Exemption for Vidders. We've gathered up the handiest discussion, for clarification on what this ruling will mean for the community.

    Our position: Fanvids are critical commentary

    For the purpose of vidding, critical is a synonym for analytical, in the sense of constructing a "reading" of the source text. A shipper vid--one that celebrates the love between two characters, or creates a deeper relationship between them, or emphasizes the relationship between them, or sometimes even constructs it out of almost nothing--is a reading of the text that changes how you see it, or re-prioritizes the values of the original. Slash is almost always a critical reading, and implicitly a political one. Lots of vids are about emphasizing characters who aren't central, giving them their own screen time, making them the main character for three minutes. All of these are making critical commentary in the sense of making an analytical reading!

    The Copyright Office did not rule that any particular vid was a fair use; however, it cited a number of vids as examples of the kinds of remix that are likely to constitute fair use.

    The Exemption doesn't cover music

    While the ruling isn't about music, it is still really important: it means that copyright holders can't use the DMCA to stop a fair use defense before it's out of the gate. Vis a vis YouTube and private companies, they will always be permitted to have their own rules: they can decide that they won't host vids that have a lot of green in them. But that doesn't make green vids illegal, and it doesn't make vids illegal either.

    Are ripped clips legal?

    Under the exemption, it does not violate the DMCA to rip clips from DVDs that you lawfully acquire for the purpose of making a noncommercial remix as long as you reasonably believe that you need to rip in order to get clips of the necessary quality. Once you have the clips, what you do with them, such as posting your vid online, is governed by fair use. If you're asking about services like YouTube, etc.: they are private companies who can make their own rules: they can decide not to host anything they don't want to host. We are hoping that this ruling will cause them to relax a bit about their own rules, but it's important to note that this is not the same thing as illegal.

    What does this mean for copyright, fair use, and vids on YouTube?

    Private companies like YouTube can take things down for whatever reasons they want, and they mostly claim to be complying with copyright, though sometimes it's that they literally don't want to bother to make the distinction between a fair use and just a pirated copy of something (likely to be less fair, though there are some arguments for straight copying as having some fair uses also). So most of the time, if you actually make a person see a vid, they agree that it's a fair use: YouTube takedowns are mostly done by computer, now, and computers can't tell the difference (or can't yet: the EFF has made some good suggestions for reprogramming computers so that they can tell the difference between a transformative work and a straight up clip).

  • Copyright Office Cites Fan Vids In Recommending New Exemptions

    By .fcoppa on Středa, 28 July 2010 - 4:34dop.
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    It's worth noting, if you didn't parse everything released with the new DMCA exemptions announced yesterday, that the fan vids in the OTW's Test Suite of Fair Use Vids (Women's Work by Sisabet and Luminosity, This Is How It Works by Lim, Handlebars by Seah and Margie, and Closer by Killa and T. Jonesy) as well as additional vids that we presented at the DMCA hearings last year - Lierdumoa's How Much Is That Geisha In The Window, Lim's Us, and Luminosity's Vogue - are discussed in the Register of Copyright's Recommendation to The Librarian of Congress. (You can download the entire .pdf, which is searchable.)

    For instance, Lierdumoa's vid helped to convince the Register that vidders need access to high quality source:

    "Noncommercial, transformative users have also sufficiently demonstrated that certain uses require high quality in order for the purpose of the use to be sufficiently expressed and communicated. For instance, where focus on background material in a motion picture is essential to the transformative purpose, as exemplified in the situation of bringing the background to the foreground, the use of decrypted DVDs is necessary to make the point. One particular example of “bringing the background to the foreground” was demonstrated in the vid, How Much Is That Geisha In The Window, by Lierdumoa. This vid criticizes and comments upon Joss Whedon’s science fiction television series Firefly. The series incorporates Asian culture and art, but the vid demonstrates that almost no Asian characters are featured and that they appear only in the background."

    The Register also discussed the timing, characterization, editing, and message of the other vids, concluding that, "frequently when one is engaging in commentary about audiovisual works, it is necessary to use high quality reproductions in order to make one’s point."

    The OTW is grateful to these vidders for allowing their work to appear in our Test Suite and for sending their work with us to Washington. Concrete examples made using high quality source are crucial to our arguments, and it is also vital for us to know about your stories, experiences, expectations, and practices. As we noted in our announcement of the exemption, we'll have to do this again in two years, and the Copyright Office will once again require evidence of the need for an exemption. You can help strengthen our case by leaving a comment or emailing the OTW's Vidding Committee at any time.

    In related news, we are continuing to keep track of press about the DMCA exemptions, so keep an eye on our links post. We are also proud to launch a Press Room to serve as a focal point for media contact and to collect media mentions of our work, as well as our own OTW press releases.

  • More news and links about the DMCA victory!

    By .fcoppa on Pondělí, 26 July 2010 - 4:36 odpoledne
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    The Copyright Office now has information about the new ruling up on their website. Particularly interesting is the Statement from the Librarian. The full text of the decision is available as a .PDF.

    Coverage of the decision is coming out fast; we'll keep updating. Please feel free to comment with links we haven't seen.

    * EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers at the EFF's site;

    * EFF wins enormous victory against DRM: legal to jailbreak iPhones, rip DVDs for mashup videos at BoingBoing;

    * Apple loses big in DRM ruling: jailbreaks are "fair use" at Ars Technica

    * Jailbreaking iPhone apps is now legal from CNN; quotes our own Rebecca Tushnet and discusses vidding particularly:

    The agency also granted an exemption allowing users to break DVD copyright controls to extract snippets of copyrighted movies for the purpose of incorporating them into new works, so long as the new creation is noncommercial. Known as "vidding," such remixing is a popular hobby among fan artists, and their creations are widely available for viewing on YouTube.

    The ruling doesn't remove all of the legal murk around vidding. Creators still need to ensure that their clips meet "fair use" guidelines, and the Copyright Office specified that its exemption applies only to motion-picture snippets extracted "for the purpose of criticism or comment."
    But advocates say the decision is a big step forward. Hollywood movie studios had long held that ripping DVDs for any purpose whatsoever is a violation of the DMCA.

    "This ruling is useful because it removes a tool that was able to be deployed over and above copyright law that already has fair-use safety valves," said Rebecca Tushnet, a law professor at Georgetown University who testified in favor of the exception at a Library of Congress rulemaking hearing last year. "Now we're back to where we should have been all along, and we can continue the conversation about what's reasonable fair use."

    * Fair Use Victories on the DMCA from the Center for Social Media

    * New DMCA Exemptions Legalize Phone Jailbreaking & DVD Ripping for Fair Use at Geeks are Sexy; this article shouts out the OTW and vidding in particular.

    * OTW's own press release

    * Review Of US Digital Millennium Copyright Act Brings New Exemptions from IP Watch

    * New DMCA exemption from

    * Letting Us Rip: Our New Right to Fair Use of DVDs in the Chronicle of Higher Education

    * Copyright Office Rules in Favor of Fair Use and Consumer Freedom - vidders get a shout out in the Huffington Post

  • U.S. Library Of Congress Grants DMCA Exemption for Vidders!!

    By .fcoppa on Pondělí, 26 July 2010 - 2:35 odpoledne
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    The OTW's Legal and Vidding Committees have just been informed that the Library Of Congress is about to release a (long-awaited!) ruling granting a DMCA (Digital Millenium Copyright Act) exemption to makers of noncommercial remix, which includes vidding, anime music videos, political remix videos and the like. Previously film studies professors had the only exemption: now documentary filmmakers, makers of noncommercial video, and media studies teachers are also permitted to circumvent DMCA technologies if they need to in order to teach or to make artistic statements. (The DMCA exemption applies to you if you are in the U.S. or if someone tries to apply U.S. law to your work.)

    This ruling does not mean that all vids and other remixed works are entirely out of the fog of legal uncertainty; rather, it means that people making noncommercial remix video do not have to worry about violating the DCMA's anticircumvention provisions (which otherwise might prohibit ripping a protected DVD), which are separate from ordinary U.S. copyright law and which don't otherwise allow for fair use. There is a requirement that circumvention must be necessary, because the Copyright Office believes that screen capture software might in some circumstances produce results of sufficient quality. As Tisha Turk testified, however, this is unlikely to be true for vidders.

    The OTW worked with the EFF on the proposed exemption, submitted its own reply comment in support (special thanks to Casey Fiesler for her hard work), and went down to DC to support this comment with live testimony from Francesca Coppa, Tisha Turk, and Rebecca Tushnet. Today's ruling is the result of the hard work of a coalition of documentary filmmakers, media studies professors, and fair use advocates.

    The ruling is expected to be posted on the Library of Congress site later today! We'll post more news and links as they become available!

    One final note: because of the restrictiveness of the law, we have to do this all over again in two years. We need your stories to help, because the Copyright Office needs to see evidence of the need for an exemption: tell us why you need high-quality source to make your vids, why they are transformative, and/or why you don't use screen capture. You can comment, or email the OTW's Vidding Committee any time.

    You can read OTW's press release on the decision here.

  • YouTube Fends Off Viacom

    By .fcoppa on Čtvrtek, 24 June 2010 - 7:03 odpoledne
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    YouTube/Google has successfully defended itself against Viacom's lawsuit, meaning that "the court has decided that YouTube is protected by the safe harbor of the Digital Millenium Copyright Act (DMCA) against claims of copyright infringement." As the EFF explains: "YouTube and all other 'user-generated content' sites rely on these safe harbors to shield themselves from copyright infringement liability"; in other words, you can't hold a company that hosts user-generated content responsible for everything its users do, or they couldn't function. This is already the law, but as we noted previously, it takes a behemoth the size of Google to defend it.

  • Go Go Godzilla!

    By .fcoppa on Úterý, 23 March 2010 - 8:40 odpoledne
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    I have often described the coming battle over online video as Godzilla vs. Mothra--that is to say, a battle which will be fought out among corporate behemoths much more powerful than any vidder. Reel one of this monster movie is starting: Viacom vs. Google. This week, both sides released paperwork detailing their claims and accusations; at stake is YouTube, and even more specifically, the DMCA's "safe harbor" provision--which is just the little detail which has made most of the internet possible. (Short, IANAL version: "safe harbor" means that you can't hold internet services liable for everything their users do with them. If streaming sites, web ISPs, social networks, etc. had to guarantee that nobody would ever use them to do, publish, or share anything illegal, they wouldn't be able to function.)

    Probably the funniest part of this week's news comes from YouTube's blog post on the subject, in which they argue that Viacom is basically full of sockpuppets:

    For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom...As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

    Is it too much to hope that Viacom flounces and deletes all its journals in a huff?

  • Link Roundup

    By .fcoppa on Pátek, 16 October 2009 - 9:18 odpoledne
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    A few legal stories that might be of interest to followers of the OTW:

    From UGC is More Than Hamsters on a Piano is an essay by Michael Weinberg at, talking about the "assumption that the UGC is essentially commercially worthless – it is all first grade ballet recitals, dogs jumping up and down, or kids falling off of skateboards. The real action (and money) is around the "real" content. Since the money will only come from the professional content, the concerns of today’s professional content owners (usually having to do with filtering or kicking people off of networks) tend to dominate the discussion." But Weinberg points out that we are not all sitting around waiting for professionals to come and entertain us, and that today's established studios may not have "the best interests of their future competitors at heart."

    From Meet the 42 lucky people who got to see the secret copyright treaty: Fans should be aware that a number of parties are trying to negotiate an international, anti-copyright treaty "that contains provisions that criminalize non-commercial file-sharing; require net-wide wiretapping for copyright infringement and border-searches of hard-drives and other devices; and disconnection from the Internet for people accused of violating copyright." A lot of people, including, BoingBoing, the EFF, and others--are protesting the secretive nature of these negotiations.

    From Rachel Maddow: Hey, Rachel Maddow follows BoingBoing: could we love her more? Rachel interviews BoingBoing's Xeni Jardin about the Ralph Lauren photoshop disaster--but gets that the real story was the attempted DMCA intimidation of BoingBoing after the fact, when reprinting the photoshopped image to mock it was a classic case of fair use. Because Boingboing's ISP was in Canada, they didn't have to comply with the DMCA, and Rachel immediately gets what she calls "the deeper part of this story", that "ISPs just immediately cave whenever they're confronted by anything like this, and it sort of hurts the first amendment."

    Lastly, our own Rebecca Tushnet caught the story that Mattel has licensed "Barbie Girl". For those not familiar with the case, 12 years ago, Barbie sued the Danish pop band Aqua, claiming trademark and copyright infringement. The claim was dismissed and the song was ruled as protected speech. Now, Mattel has licensed and rewritten the song to promote its new line of Barbie products. If you can't beat 'em...?

  • The Slow Road to Fair Use: How IKAT381 fought the Bots and won

    By .fcoppa on Sobota, 3 October 2009 - 2:31 odpoledne
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    You might think fighting robots only happens in video games, in which case: read the The Slow Road to Fair Use: Why it Takes Three Weeks to Post Your Youtube Video, a guest post by video remixer IKAT381 at IKAT381 chronicles the three week--but ultimately successful--slog to get a vid up on YouTube, a process that included fighting the upload bot, which did an automatic takedown, lodging a dispute through YouTube's built-in online tool, and then lodging a DMCA counternotice when the dispute was denied (by another bot?) in favor of UMG, the record company that owned the Weezer song.

    Persistence paid off, but as IKAT381 points out, "imagine if I was a career artist who wanted to dedicate more time to creating than to looking up copyright law and counter-notice procedures. Or imagine I had kids, or school, or any number of things that might be more important to me than being a copyright geek."

    IKAT381 concludes: In the year 2009, copyright disputes have been taken over by robots. In the year 2010, copyright disputes should be handled by people.

    (You might also enjoy the vid. Super Pork and Beans All-Stars (Weezer Remix) is a tribute to IKAT381's favorite internet celebrities, of which you're sure to recognize more than a few!)

  • OTW Responds to Questions from the Copyright Office Regarding Proposed DMCA Exemptions for Remix Artists/Vidders

    By .fcoppa on Pátek, 18 September 2009 - 11:47 odpoledne
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    The Copyright Office requested further information from the OTW and other groups that testified during the DMCA Anticircumvention Hearings on May 6-8. These hearings were designed to entertain testimony in favor of and against DMCA exemptions for media educators (including K-12 teachers), documentary filmmakers, vidders, and other noncommercial remix artists.

    For those who are interested, our answers are linked here.

    The first is a joint answer, collaboratively written, submitted, and signed by the OTW, the Electronic Frontier Foundation, and a number of library associations (ALA, AALA, ARL, ACRL), film and media studies professors, and documentary filmmakers and their organizations. (Joint Supporters Response To Supplemental Questions On Proposed DVD-Related DMCA Exemptions (PDF).)

    The second is a separate response co-written specifically by the OTW and the EFF to address the particular needs of vidders and other remix artists. (OTW & EFF Response To Supplemental Questions, Specific To Noncommercial Video Remix Creators (PDF).)

  • Notes from the Open Video Conference, Day Two

    By .fcoppa on Středa, 24 June 2009 - 7:23 odpoledne
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    Summary of a couple of panels on Day 2:

    Automated DMCA Takedowns and Web Video: Scott Smitelli, a professional sound designer and editor, is the fellow who wrote Fun with YouTube's Audio Content ID System, in which he tried to test out the limits of YouTube's fingerprinting system for audio. Conclusions: the software is mainly interested in the first 30 seconds of a song, and can be thwarted by pitch or time alterations of over 6% (which may be unhelpful to the musically sensitive among us, but there you go.) Kevin Driscoll and others from YouTomb discussed the January Massacre: the massive increase of takedowns in December, 2008 and January, 2009. On a graph, it looks like takedowns have dropped off since then, but that may be deceptive: in fact, it seems like things are being detected so fast (within ten minutes) that YouTomb can't keep track of them, or to put it another way: takedowns are low because stuff's never getting UP in the first place. A suggestion: that it would be great if every takedown left a webpage with a card saying, "This has been taken down," because in many cases, people are not aware of what they can't have. Oliver Day, also from YouTomb, told a chilling story: the original filmmaker who shot the clouds that were used in the Anonymous anti-Scientology ads had his original footage taken down--not in deference to those ads, but in deference to a Huffington Post anti-Giuliani parody of those ads. As Day put it, "The power is with the powerful": even though the original filmmaker's footage was there first, it was assumed that he was infringing the Huffington Post, and not the other way around.

    Who Owns Popular Culture? Remix and Fair Use in the Age of Corporate Mass Media: This was the panel hosted by Jonathan McIntosh and featuring animator Nina Paley (of Sita Sings The Blues, Neil Sieling from the Center for Social Media, political remixer Elisa Kreisigner, Karl Fogel from, and OTW Board Member Francesca Coppa. The panel largely discussed what the policing of online video and the over-enforcement of copyright means for artists, remixers, and those interested in free speech. Nina Paley answered the question literally, by providing a list of who owns popular culture--or in her case, literally, the songs, mostly from 1927-28, that she used in Sita Sings The Blues, while Elisa Kreisinger evoked many the important visual artists, from Duchamp to Koons to Kruger to Lichtenstein to Warhol, for whom remixing and recontextualizing pop culture was a key artistic move. (She also showed her remixes of the Queer Housewives of New York City.)


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