Under the Digital Millennium Copyright Act, video artists who break the encryption on a DVD or sample online streaming videos could face legal threats - even if the video they create is considered fair use. We think that's nuts.

Kirby Ferguson, creator of Everything is a Remix, is standing with the Electronic Frontier Foundation in fighting for the right to create remix videos. [learn more]

What is the DMCA?

The Digital Millennium Copyright Act is a massive piece of copyright legislation that, among other things, prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works, or providing tools to help others do so. Entertainment industry lobbyists argued that DRM backed by law would quell digital copyright infringement. Twelve years later, we know that hasn't exactly worked out.

But in an effort to ensure that these DRM mechanisms would not impede lawful uses of copyrighted works, Congress included a "fail-safe" mechanism: a DMCA rulemaking proceeding is held every three years by the Copyright Office. The Copyright Office and Librarian of Congress have the power to grant exemptions to the DMCA's anti-circumvention rules if the restrictions would encroach on otherwise lawful uses of copyrighted works.

The process is cumbersome: the public must submit requests backed up by evidence, others comment on those requests, hearings are held, the Register of Copyrights issues recommendations and then, finally the Librarian of Congress makes his or her decision. And the exemptions don't renew automatically, so the process must be repeated every three years or so.

Who is the EFF and what are their exemption requests?

The Electronic Frontier Foundation is a digital rights organization that fights on behalf of users and innovators everywhere. Bringing together lawyers, policy analysts, activists, and technologists, EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing thousands of concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, EFF educates the press and public.

In the 2012 rulemaking, EFF is asking the Copyright Office to protect the "jailbreaking" of smartphones, electronic tablets, and video game consoles - liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create new, remixed works. These exemptions build on and expand exemptions that EFF won on the 2009 rulemaking proceeding for jailbreakers and remix artists.

Dear Ms. Pallante,


But this creative expression is threatened by legal uncertainty. Three years ago, the Copyright Office agreed to create an exemption to the Digital Millennium Copyright Act so that creators could break DVD encryption to sample video clips. But that exemption is about to expire, opening up the possibility of legal threats against video artists like us.


Over the last several years, the Internet has given birth to a whole new world of creative expression. I've used remix videos to teach the people about copyright law and educate Internet users about dangerous legislative proposals that would affect online speech. Other video artists have used video clips to create remix videos that are humorous, political, artistic, and educational. We couldn't do this important creative work without sometimes breaking encryption. Often, it's the only way to get access to video clips. And when other ways of excerpting video are available, they tend to be slower and lower-quality, which hurts the immediacy and impact of our work. We need the law to catch up with how people are using technology.

By creating these exemptions, you'll be ensuring that the Internet of tomorrow is full of creators, not just consumers.

Thanks for helping us keep the Internet interactive and safeguarding the rights of video artists everywhere.

Kirby Ferguson
Creator of Everything is a Remix


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