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in Filmmaking
on May 9, 2009

This past week the effect of the Digital Millenium Copyright Act on educators, documentary filmmakers and remix artists was debated during one of the Copyright Office’s tri-annual hearings. Several bloggers and participants have written about the hearings, and one, Gordon Quinn, is the subject of an article by Lindsay Muscato on the Gapers Block blog. Her article offers a good overview of the issue. Her lede:

This week in Washington, Chicago filmmaker Gordon Quinn and other advocates prepare for the next battle for filmmakers’ right to quote from their culture. Mass-produced DVDs often encrypt films so that they can’t be copied, and filmmakers can’t excerpt them without circumventing the copy-protection. Right now, cracking into these DVDs is a crime — even if it’s legal to use the media behind the locked door. Quinn and others argue that filmmakers should be exempt from this law, the Digitial Millennium Copyright Act.

Patricia Aufderheide at her American University Center for Social Media blog has written two detailed posts recapping the two days of the hearings, May 7 and 8. From the first post, which begins by referencing film professors’ rights under fair use to show excerpts of copyrighted films in their clases:

Yesterday, the opposing sides sat across from each other in the room. On the right were a band of educators and their lawyers. On the other, corporate lawyers represented the interests of the motion picture companies and the encoders. (One of them, Steve Metalitz, was recognized from the bench as being semi-resident.)

Peter DeCherney started, noting that film professors could do their work much better now. He then asked the Office to expand the exemption to other teachers (what about history teachers? literature teachers?) and to the students who also needed to assemble videoclips for class and conference presentations and for video essays. Lawyer Jonathan Band then spoke on behalf of library interests, slamming large copyright holders for being “reflexively confrontational.” He asked the Copyright Office to expand the exemptions as well to non-university settings….

Industry lawyers sighed and got to work. Steve Metalitz representing a coalition of copyright holders and Fritz Attaway of the MPAA professed themselves lovers of learning but not at the expense of their businesses. The law was designed to make copying inconvenient, they said, and no one had the right to demand the quality of the original in the copy. Besides, they said, shooting an image off a screen with a camcorder produces a perfectly good copy. They showed how you could do this with off-the-shelf equipment, in a quiet, perfectly dark, large room….

The goal of day one was to expand the exemption granted by the Copyright Office to the DMCA to a broader group of educators (not just film professors but history teachers, etc.) as well as to students who need to use copyrighted materials as part of video essays and other projects.

Aufderheide recaps day two, which focused on documentary filmmakers and remixers. An excerpt:

Gordon Quinn of Kartemquin Films explained why fair use is essential to documentary filmmakers and why encrypted DVDs hold much of the material that they need. He heralded the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Then Kartemquin’s engineering guru Jim Morrisette proceeded to show why the solutions of the content industry’s lawyers—shooting off a TV screen or copying from a videocassette—don’t meet broadcast standards….

Remix supporters, coordinated by the Electronic Frontier Foundation’s Fred von Lohmann, argued for an exemption for noncommercial use by anyone who employs fair use to create amateur video work such as the female-dominated “vidding” that re-imagines popular TV shows such as Firefly and Battlestar Galactica. Profs. Francesca Coppa and Tisha Turk, both of whom study and practice such work, testified to the importance of access to high-quality popular culture in order to critique, comment and “talk back” to it. Law professor Rebecca Tushnet, one of the authors of the Code of Best Practices in Fair Use for Online Video, heralded the Code and had some of the day’s best lines. She called the DMCA restrictions a “digital literacy test” and the requirement to use expensive workarounds as a“digital poll tax.” She ridiculed the notion that video makers could work with degraded video images: “We don’t tell other artists they can only use crayons, not pencils.” The industry lawyers did not bother engaging the question of the social value of vidding or remixes. They simply objected to the notion of an exemption that potentially included anyone, rather than the narrowly targeted exemption categories that have been used to date.

Aufderheide ends on a positive note by observing that industry lawyers did not attempt to challenge the fair use codes referenced by filmmakers, which has been a tactic in previous years. For the Documentary Filmmakers’ Statement of Best Practices in Fair Use, found on the Center for Social Media website, click here.

I’ll follow up when there’s further news resulting from these hearings.

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