Fair Use Week Guest Post: Rebecca Tushnet on Fair Use and the DMCA’s “Anticircumvention” provisions

Posted February 24, 2016

Rebecca Tushnet is a founding member of Authors Alliance and a Professor of Law at the Georgetown University Law Center.

My work on section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits use of “circumvention” technology such as DVD rippers or, potentially, even screen capture software in order to make video clips for use in new works, has convinced me that it’s one of the most counterproductive provisions in copyright law. Counterintuitively, Section 1201 makes the process of acquiring video illegal even if the result is unquestionably a fair use.

On behalf of the Organization for Transformative Works, I have participated three times in the triennial exemption process that provides temporary exceptions for certain users. The community I work with, vidding, is full of artists who make works commenting on and transforming existing works, adding new meaning and insights—from reworking a film from the perspective of the “villain” to retelling the story as if a woman, instead of a man, were the hero. Section 1201 threatens these traditional artistic remix practices in new media.

The idea that it could be unlawful to perform the steps necessary to take a lawful act is mystifying to most people, including remixers.[1] Indeed, as researcher Lucas Hilderbrand observed, “when people learn about the extent of the DMCA restrictions, they respond with shock and outrage, which tends to turn either to pessimism or to willful disregard for the law.”[2] Under §1201, remixers risked having their fair uses suppressed simply because they did what seemed like the fairest thing for the copyright owner and paid for a copy from which they could clip, rather than downloading an unauthorized copy without copy protection.[3] Indeed, the few remixers who did know about the DMCA were pushed into illegitimate markets. From anti-abortion groups remixing an abortion clinic’s footage to Native American groups showing what a football game would look like without the Washington team’s current name, fair users make speech about the things that concern them, usually without even knowing about the existence of a separate anticircumvention law. They think that fair use protects them, and why shouldn’t they? Fortunately, we’ve now secured an exemption for many noncommercial fair uses—but §1201 makes that exemption expire after three years if it’s not renewed.

Section 1201’s harms aren’t justified by its benefits. As the widespread availability of circumvention software demonstrates, it’s been ineffective at preventing circumvention. It’s been even less effective at its real goal, preventing copyright infringement—once a single copy exists without copy protection, it’s easily multiplied, so failing once means failing everywhere. And someone who intends to infringe copyright isn’t deterred by another law making circumvention additionally illegal. As a result, §1201 harms people trying to do the right thing without deterring people trying to do the wrong thing.

Before the noncommercial exemption, I regularly encountered remixers who, for example, received a DMCA takedown notice for a video and wanted to contest it. It was painful to tell them that yes, their fair use was clear, but that if it came to a court case, the copyright owner could still win if they’d made their fair use in the wrong way. Now, at least, they can assert their fair use rights with confidence—as long as they’re noncommercial; the Copyright Office denied an exemption for non-documentary filmmakers generally. We’ve won renewal of the noncommercial exemption two times now, but the battle is exhausting, and each time the Copyright Office tries to limit the exemption with detailed language so that some fair uses may fall through the cracks. It’s a waste for everyone involved.

Flourishing creativity requires that individuals have rights to make, use, and share their new creations, collaborating with others to improve them, as remix authors do. Given the small scale and limited resources of most individuals, it’s easy to deter this kind of creativity with overbroad laws or threats of liability. As a result, as Professors Andrew Torrance and Eric von Hippel have observed, “heedless government actions currently have significant impacts upon the fragile ‘innovation wetlands’ environment within which individual innovators operate.”[4]

Anticircumvention law, which we have aggressively exported to other countries, inflicts this kind of collateral damage. We need an environmental impact analysis for copyright law, prioritizing the creation of rules that make sense to ordinary creators. As the United Kingdom’s Intellectual Property Office concluded, copyright’s complexity hurts its legitimacy, and too many people have given up trying to make sense of it.[5] While they encourage disrespect from some people, incomprehensible rules also deter risk-averse creators from making fair uses. The solution, as the UK IPO report put it, is to “hid[e] the wiring”—to simplify copyright law so that it comes into better alignment with lay logic.[6] Limiting anticircumvention law to circumvention that assists infringement would be a good start.

Remixers working in every form of media are part of the future of our culture. Artists, not lawyers, should determine the shape of works to come.

[1] See Katherine Freund, “Fair use is legal use”: Copyright Negotiations and Strategies in the Fan-Vidding Community, 17 New Media & Society 1, 5 (2014).

[2] Lucas Hilderbrand, Inherent Vice: Bootleg Histories of Videotape and Copyright 79 (2009).

[3] Rather than distinguishing methods of obtaining files, vidders use a much more intuitive and fair calculus: “[T]he big legal line many vidders draw [is] between ‘paying’ and ‘not paying’ for source footage.” Francesca Coppa, Interview for DMCA Rulemaking (2008), available at http://transformativeworks.org/projects/eff-comment-appendix-b.

[4] Andrew W. Torrance & Eric A. von Hippel, Protecting the Right to Innovate: Our ‘Innovation Wetlands’ (Oct. 9, 2013), available at http://dx.doi.org/10.2139/ssrn.2339132.

[5] U.K. Intellectual Prop. Office, © the Way Ahead: A Strategy for Copyright in the Digital Age 24, 27 (2009), available at http://www.ipo.gov.uk/c-strategy-digitalage.pdf.

[6] U.K. Intellectual Prop. Office, supra, at 33 (“Calls have been made for solutions which lessen or remove a non-commercial consumer’s need to understand copyright law. The analysis above would suggest that ‘hiding the wiring’ by simplifying the situation for users could help tackle some of the problems of the copyright system.” (citation omitted)).