Skip to main content

EFF Presents Mur Lafferty's Science Fiction Story About Our Fair Use Petition to the Copyright Office

DEEPLINKS BLOG
May 21, 2018

EFF Presents Mur Lafferty's Science Fiction Story About Our Fair Use Petition to the Copyright Office

Section 1201 of the Digital Millennium Copyright Act (DMCA 1201) makes it illegal to get around any sort of lock that controls access to copyrighted material. Getting exemptions to that prohibitions is a long, complicated process that often results in long, complicated exemptions that are difficult to use. As part of our ongoing to effort to fight this law, we're presenting a series of science fiction stories to illustrate the bad effects DMCA 1201 could have.

It's been 20 years since Congress adopted Section 1201 of the DMCA, one of the ugliest mistakes in the crowded field of bad ideas about computer regulation. Thanks to Section 1201 if a computer has a lock to control access to a copyrighted work, then getting around that lock, for any reason is illegal. In practice, this has meant that a manufacturer can make the legitimate, customary things you do with your own property, in your own home or workplace, illegal just by designing the products to include those digital locks.

A small bit of good news: Congress designed a largely ornamental escape valve into this system: every three years, the Librarian of Congress can grant exemptions to the law for certain activities. These exemptions make those uses temporarily legal, but (here's the hilarious part), it's still not legal to make a tool to enable that use. It's as though Congress expected you to gnaw open your devices and manually change the software with the sensitive tips of your nimble fingers or something. That said, in many cases it's easy to download the tools you need anyway. We're suing the U.S. government to invalidate DMCA 1201, which would eliminate the whole farce. It's 2018, and that means it's exemptions time again! EFF and many of our allies have filed for a raft of exemptions to DMCA 1201 this year, and in this series, we're teaming up with some amazing science fiction writers to explain what's at stake in these requests.

This week, we're discussing our video exemption.

Moving pictures emerged in the late 19th century, but it would take more than a century for video production and distribution to become accessible to nearly everyone, even children. Today, billions of people are able to create, share, and remix more video than the world has ever seen, and as new creators have gotten their hands on the means of production, new forms of creativity and discourse have emerged, delighting and exciting millions, prompting even more creativity and innovation.

But even as the tools to create video have gotten easier, the rules for using them have gotten much more complicated. Though copyright law contains broad, essential exceptions that allow filmmakers, critics, educators and other users to take excerpts from movies to use in their own works, the use of DRM to lock up video and Section 1201's ban on breaking DRM adds real legal risk to this important activity.

In previous proceedings, the Copyright Office has granted exemptions allowing certain groups of people to bypass DRM in order to create and educate, but these grants have excluded all kinds of legitimate fair uses. Now that we have years worth of evidence that bypassing DRM in order to make fair uses didn't harm the film industry, it's time to extend those rights to everyone, and that's why we've asked the Copyright Office to grant a new exemption allowing anyone to get around DRM in order to exercise their fair use rights.

2017 Hugo and Nebula Award nominee Mur Lafferty was kind enough to write us a short science fiction story called "The Unicorn Scene" about the importance of making fair use available to everyone:

The Unicorn Scene, by Mur Lafferty

Erica put her hand on Mary’s shoulder as her friend scrolled through Netflix. “Look, the idea is brilliant, it hasn’t been done before, it shows leadership, creativity... what?”

Mary had just literally head-desk’d. She whapped her head a few more times for emphasis.

“That’s not getting anyone anywhere,” Erica said. “What did you find?”

“I can’t break the DRM of any of these movies. We can’t get the clips we need,” Mary said, staring at the error message on her screen.

Mary was a cinephile. No one had an eye for film like she did. When other kids were reading Hunger Games and Divergent, she was reading critical essays by Pauline Kael and Roger Ebert. She’d expound at length on the metaphorical meaning behind the colors in The Godfather movies before her parents even let her watch the films themselves. There was no doubt she was the biggest film nerd her hometown of Asheville had ever seen, but no one had a guaranteed acceptance to the NY Film Institute.

She had organized the Buncombe County Student Film Festival when she’d been a sophomore. That first year, ten people from her school and the parents of the film students had come. Now she was a senior, they needed an auditorium for 800 people after the interest the festival had created.

Not to mention a representative of the NY Film Institute would be coming, and interviewing Mary the following day.

The problem was, the festival wasn’t going to happen. At least, not how she had envisioned it.

This year’s challenge was to take five famous movies and recut them to make a new short film. She’d researched the law – using movies in this way was legal under fair use. It should have been easy to do.

Only she couldn’t access any video of the film for editing purposes.

“Let me see,” Erica said, looking up information on her phone. “Hey, not all hope is lost. It looks like you can license clips from movies. It may cost you, but what film project is free?”

“How much?” Mary asked, her voice flat as if she already knew her answer.

Erica was silent for a moment. “How- how many clips do you want to use?”

Mary looked down at her notebook where she had sketched out the film using clips from The Princess Bride, The Godfather, The Room, The Cabin in the Woods, and Rosemary’s Baby. She counted for a moment. “Three hundred.”

“Do you have three hundred grand lying around?” Erica asked after a moment.

“It’s a thousand bucks per clip? I couldn’t even pay for one clip from each movie!” Mary said. “How is this possible? It’s fair use, we aren’t breaking any laws.”

“We could bypass the DRM. It’s not hard. I know a girl in my programming class,” Erica said.

“Then we would be breaking laws,” Mary pointed out. “I’d go into my interview saying, ‘Hi, Mr. Interviewer. I’m sorry I can’t go to your film school, but I’ll be working for the next fifty years to pay off my fines for breaking DRM in order to use a movie clip in a perfectly legal fair use situation.’”

“We might not get caught,” Erica said.

Mary’s head hit the table again. “And then again we might...who’s your friend?”

“No, you’re right, you will mess up your career if you start it like this,” Erica said. “maybe we can crowdfund one clip.”

“Then it’s not a project! It’s a film clip! Who wants to see *just* the unicorn scene from Cabin in the Woods?”

Erica sighed. “You do realize everybody is going to be hitting this wall, right? Someone is going to bypass the DRM. We’re not going to have a festival with no movies.”

“So we’re urging every kid in this festival to break the law?” Mary asked, her voice muffled from talking directly into the table.

“The festival is in two weeks,” Erica pointed out. “They probably already have.”

Erica leaned on the desk. “So what now?”

Two weeks later, Mary sat at the coffee shop with Professor Richard Jenkins opposite her.

“Your work was surprising last night,” he said carefully.

Mary winced. She had ended up gathering actors and acting out each scene as if they were in the movies, with homemade props and cobbled together scenery. She hadn’t won any of the awards at the festival. “I didn’t want to break the DRM of the videos, and I didn’t have three hundred grand to buy the licenses to the clips,” she said.

“It was a creative fix, but clearly done at the last minute.” He paused, as if waiting for her to defend herself.

After a moment, she said, “I know it was. I had to weigh possibly getting sued for using a video in a perfectly legal way, or doing something else. I made my choice.” She shrugged. “Starting my college career doing internet courses from prison didn’t sound good... do they even let you take internet courses from debtors’ prison?”

“That I don’t know,” he said. “But I think you would be a good candidate to study copyright and DRM with regards to film, now that you know what it’s like to go up against it.”

She lifted her head. “Really?”

“Don’t get me wrong, your movie was terrible. But I like your style,” he said. “And I think you’d be a good voice for change.”

“Lord knows we need it,” Mary said.

 

Back to top

JavaScript license information