DMCA Follow-up Answers
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).