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EFF Asks Librarian of Congress to Help Correct DMCA Gotcha

We at EFF think remix art is an important part of modern culture, one that helps ordinary people critique mass media and create new art that builds on media they love. This week we teamed up with the Organization for Transformative Works to help make sure remix continues to thrive.

The problem lies with a particular provision of the Digital Millennium Copyright Act. Here's an experience we’ve had many times at EFF. A remix artist has made a fun, important video and then receives an unfair DMCA takedown notice. She reaches out to us to ask whether she should challenge it. We look at the video and conclude it’s a fair use and worthy of a counter-notice. But then comes the trick: We ask the artist how she got the video excerpts she used in her video. She hastens to assure us that she did not rely on unauthorized sources. She’s a fan, wants to support the original creators, and thinks the right way to do that is to buy their work. So she paid full price for a Blu-ray disc and extracted the clips from the disc.

Now we have to introduce her to a particularly outrageous law. Everything she did is likely perfectly lawful, and indeed beneficial to the original creator. With one big exception: When she ripped that disc, she may have violated Section 1201 of the DMCA. That act, even for a perfectly legitimate purpose, is, by itself, illegal.

In order for our artist to be allowed to rip the data off the disc she owned in order to make a lawful use of it, someone has to have gone to the Librarian of Congress and asked for permission (an “exemption”) for that type of activity, as part of a rulemaking that takes place once every three years. The good news is that EFF, working with the Organization for Transformative Works, has twice won permission for ripping DVDs in order to extract short clips for making noncommercial videos. In 2012, that permission was extended to online distribution sources (with some caveats).

The bad news is the existing exemption does not extend to Blu-ray discs. This means that the legal risks of making a remix video depend in large part on what you happen to use for source material—no matter how lawful the final video, and how careful the remix artist has been to try to support the original creator. There is no principled reason for this, but such unintended consequences are commonplace in the crazy world of the DMCA.

The other bad news is that even the current exemptions for DVDs and streaming will expire if they are not renewed, casting a legal cloud over a huge swath of important creative activity. That’s right: every three years we and many others have to march to DC, hats in hand, to ask permission to circumvent digital restrictions that are standing in the way of completely legitimate activities like car repair, jailbreaking, or playing orphaned videogames. And, any exemption we do get does not apply to those who develop and provide the tools that make circumventing encryption possible. So you can use DVD-ripping programs, but you can’t make them, at least not without legal risk (though other provisions of the DMCA may protect those activities).

This is an absurd state of affairs. Protecting remix is important, and we’ll continue that work in DC and the courts. But as we explained to lawmakers in September, what we need is a real fix for the DMCA. Congress should overturn Section 1201 altogether. Short of that, the law should be scaled back to ensure that it only applies to conduct actually intended to facilitate copyright infringement. Not only would this bring the law back in line with its intent, but it would dramatically reduce the enormous costs of the triennial rulemaking process. That is why we strongly support the “Unlocking Technology Act,” introduced last year by Representative Zoe Lofgren and a bipartisan group of sponsors.

Until then, we’ll keep fighting. Keep following EFF to learn how you can help! 

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