Talking With TV

Once again, the OTW and EFF persuaded the copyright office to grant vidders (and other makers of noncommercial remix video) a DMCA exemption! The Librarian of Congress 1) renewed the existing exemptions (which allow us to circumvent DRM on DVDs and digital downloads) and 2) added Blu-Ray.

You can read the EFF's account or read the ruling itself.

\o/

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If you're reading this post, you probably already know at least a little bit about the ways in which the OTW has gone to bat for vidders over the years. I mean, yes, the OTW has done a lot of other great stuff too; I am endlessly grateful for Transformative Works and Cultures, I love Fanlore, and I hear there's also some big fic archive or something. But it's the OTW's work on behalf of vidders, AMV makers, and other fan video artists that means the most to me personally, as a vidder and vid fan.

I'm grateful not only for the achievements themselves but for the organization that's facilitated them. The OTW has enabled fans to collaborate on big projects, to pool our skills and expertise, in ways that would otherwise be difficult if not impossible. Without the OTW, I would still have been furious about DMCA-related takedowns of vids, but I wouldn't have known where to begin fighting back. I wouldn't have known it was even possible to file an exemption petition, much less known how to do so; I just don't have that kind of legal training! But because of the OTW, I've been able to participate anyway: to lend some tech know-how to the people who do have the necessary legal expertise, to bring a vidder's voice to the hearings in DC. I'm proud to be part of this work and grateful to the OTW for the opportunity to contribute what I can.

DMCA

Speaking of which: This year's DMCA hearings have been scheduled for the end of May, so I will once again be joining Rebecca Tushnet and Francesca Coppa at the Library of Congress to explain, in the smallest words possible, why vidders need to be able to break encryption on Blu-ray, DVDs, and DRM-protected digital downloads. Some of the arguments on file have already yielded that special "oh my god you did not just say that" combination of hilarity and outrage that I have come to associate with the DMCA exemption process, so the hearings themselves should be... memorable.

I will also be going to several conferences in the next six months.

Gendered Politics of Production symposium

( details )

Fan Studies Network conference

( details )

Feminisms and Rhetorics

( details )

(Title courtesy of devildoll because OMG so true.)

Already cross-posted lots of places, but here's one final reminder!

The OTW's Fan Video & Multimedia Committee is once again working with the Legal Committee and the Electronic Frontier Foundation to petition for a DMCA exemption granting vidders, AMV makers, and other creators of noncommercial remix video the right to break copy protection on media files. In 2010, we won the right to rip DVDs; in 2012, we got that exemption renewed and expanded to include digital downloads (iTunes, Amazon Unbox, etc.). In 2015, we'll be pushing to add Blu-Ray—and, of course, to renew the exemptions we've already won in the last two rounds of DMCA rulemaking.

And we need your help to do it! If you make or watch vids, AMVs, or other forms of fan video, we need you to tell us:

1. Why making fan videos is a transformative and creative act;
2. Why video makers need high-quality source;
3. Why video makers need to be able to manipulate source (change speed and color, add effects, etc.);
4. Why video makers need fast access to source (such as using iTunes downloads rather than waiting for DVDs);
5. Why video makers need to be able to use Blu-Ray;
6. Why video makers need to be able to use streaming sources; and
7. Anything else you think we should keep in mind as we work on the exemption proposal.

We're also looking for vids that we should add to the Fair Use Test Suite, and we'd love to have your suggestions.

If you have thoughts about any or all of these topics, you can comment on this post OR contact me (Tisha) directly at tisha dot turk at gmail dot com or fanvideo-chair at transformativeworks dot org, or email the Legal Committee at legal at transformativeworks dot org. You don't have to use your real name; we can use your name or pseudonym or describe you anonymously as "a vidder" or "a fan video artist."

The DMCA is U.S. copyright law and only directly affects U.S. vidders, but it does potentially have ripple effects outside the U.S.: Strong DMCA exemptions help send the message that fan creativity should be protected everywhere. With that in mind, please feel free to send your thoughts even if you don't live in the U.S.

Also, please help us signal-boost! This info has been posted to LiveJournal and Dreamwidth vidding communities and on Tumblr; if you can think of other places the OTW should post, please let me know—and if you can spread the word in your own communities, on streaming sites, etc., please do.

I just read Rebecca Tushnet's "Judges as Bad Reviewers: Fair Use and Epistemological Humility," a fascinating and highly readable analysis of the ways in which copyright fair use cases turn on judges' willingness to acknowledge that texts can be interpreted in many ways; Tushnet uses vids as case studies. (Full disclosure: I'm cited in it! That is never not going to be exciting.)

Given last week's post on best vs. favorites, I was particularly struck by this bit, which is about the importance of explaining criteria for judgment:

[W]hen it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations, which may be one reason that a well-written negative review can be extremely helpful to someone deciding to go ahead and buy the book anyway.

Tushnet goes on to explain the main problem with current practice:

Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Instead, even a defendant-favorable fair use case tends to fix one meaning to the plaintiff’s work and another meaning or purpose to the defendant’s work, and then declare them different enough that the defendant’s use is transformative and therefore fair.

What I found especially interesting was her analysis of a specific case (Blanch v. Koons) in which appropriation artist Jeff Koons' use of a copy of a fashion photograph was found to be fair use: the court deferred to Koons' own account of his reasons for using the photo—and by "[s]hifting to a particular expert, the artist himself, the court left the structure of expertise intact." As Tushnet explains,

fair use was determined not on the basis of potential audiences’ understandings of new meanings from the accused work, but on the ability of the artist to express his intentions.... Thus, rather than accepting that multiple meanings and interpretations can coexist, the court picked a side in a contest about true meaning, not unlike a ruling in a contracts case.

Not surprisingly, that passage also made me think of the DMCA hearings, where my primary value was not my academic credentials (except indirectly, insofar as the nature of my employment allows me to be cheerfully matter-of-fact about my fan activities) and certainly not my legal expertise (of which I have exactly none) but my willingness and ability to speak as an artist expressing intention: "This is what I need and this is why I need it." That kind of performance is always weird for me because I am hyper-aware of all the ways in which I can't speak for all fans or all fan video artists or even all vidders; I can only speak as one member of those larger groups.

Tushnet's article shows, I think, why we need both to encourage fans who can do that kind of speaking to do it (because many fans, for any of a variety of reasons, are not in that position) and to change the cultures—legal and otherwise—that value artistic expertise/authority at the expense of interpretive multiplicity.

I mean, that's a huge part of the point of fandom, right? Do all the readings! Make all the meanings! Explore every option in as many ways as possible! One of the many reasons that vids and vidding appeal to me is precisely that they're not isolated art projects; rather, they're embedded in a whole ecosystem of overlapping and intersecting and sometimes contradictory projects and goals and ideals and interests. That's what makes it fun.

On Monday, June 4, I testified in this year's hearings about exemptions to the Digital Millenium Copyright Act (DMCA). Rebecca Tushnet is doing her usual comprehensive write-ups of panels and has already posted her notes from our panel. What I'm posting here are my own notes from which I spoke; as usual, I sort of riffed as I went, so the official transcript, when published, will be slightly different. I've also added, in [brackets], a few comments, elaborations, and clarifications.

I introduced myself and explained my Official Credentials, and then I began...

I’m also a vidder myself, and that’s the perspective from which I’ll be speaking today. Professor Tushnet and Professor Coppa have spoken about the legal and cultural aspects of remix video; I’m going to talk about aesthetic and technical concerns.

There are two main points that I want to make: 1) Vidders need high quality source for both rhetorical and aesthetic reasons. 2) The screencapture solution posed at the May 11 Tech Day hearings doesn’t work.

( more about these arguments under the cut! )

There were a few moments from the Q&A about which I hope to post in the next day or so, because they were this amazing blend of offensive and hilarious—the short version is that one of the industry lawyers attempted to mansplain video capture and frame size to me and I got to actually say the sentence "Well, the problem with that is that it's not true." But more on that anon.

The OTW Legal and Vidding Committees are preparing to propose a renewal of the DMCA exemption we won last time around--the one that makes it okay for vidders to rip DVDs--and we need input from vidders, AMV makers, and other fan video artists.

(For some background on the Digital Millenium Copyright Act, the exemption, and the Motion Picture Association of America's absurd proposal about how vidders should get digital files without ripping DVDs, I recommend this short clip, featuring audio and video from the 2009 exemption hearings.)

From the original post at the OTW blog:

If you vid or make other forms of fan video by ripping DVDs or Blueray discs; if you rip footage from a streaming service like Hulu, iTunes Streaming, or Amazon Unbox, please get in touch! You don't have to use your real name: Depending on your choice, we can describe you using your pseudonym or as "a vidder" or "a fan filmmaker." We are trying to compile stories of how fans work and what they need to make their fanworks.

We are seeking your own words about:
(1) Why vidding is a transformative and creative act;
(2) Why you need to circumvent (rip) DVDs or other sources such as Blu-Ray, Amazon Unbox, Hulu, or YouTube--we are particularly interested in cases where you were only able to find a copy of the source at one of the online services because the source wasn't available on DVD;
(3) Whether you've tried screen capture software and how it worked for you;
(4) Whether you could make use of the "alternative" proposed by the MPAA, which is that you set up a separate camera to record your screen as it plays the source;
(5) Why high-quality source is important to you, whether your reasons are technical or aesthetic or something else;
(6) Anything else you think we ought to know as we work with the EFF to put together our request!

So please contact Francesca Coppa directly (fcoppa at transformativeworks dot org) or use the Vidding committee webform.

We've already gotten some terrific responses--some blunt, some eloquent, all smart and valuable--and we would love more! I'm working on a formal statement that will be submitted along with the exemption, and the fan responses I've seen have a) inspired me and b) reminded me of some issues I might otherwise have neglected to mention, so, in addition to contacting the Vidding Committee, feel free to comment to this post if there's a point you'd like made or an issue you'd like raised.