epershand | Quick hit: Rebecca Tushnet liveblogged the DMCA hearings

Earlier this month, the OTW's legal chair, Rebecca Tushnet, testified at the bienniel hearings on exceptions to the DMCA. She was there to argue specifically for an exception to the rules about breaking DRM in cases where the resulting work would be fair use, particularly for fanvids. But while she was there, she liveblogged the entire proceeding.

Her notes are dense and detailed--I've been working slowly through them over the course of the last month--but most likely to be of interest to many folks. Some posts I found particularly interesting:

DMCA: Remix

The broader point is that people (highly experienced lawyers among them) generally try to figure out what makes sense and guide their behavior thereby. It does not make sense to a non-copyright lawyer that a fair use might still be in violation of the anticircumvention law, and so they don’t think of it or even believe it. The idea of “alternatives” to circumvention like screen capture is not meaningful in this environment. The question is whether fair uses carried out through circumvention are going to be made illegal despite the resulting harm to fair users and the failure to decrease infringement. Vidders and noncommercial artists generally only find out about the DMCA after the fact, when they receive a takedown notice.

This dynamic—where the alternatives don’t make sense and therefore provide no practical alternative to circumvention, is one that I’ve called a “digital literacy test,” like the classic literacy tests used to disenfranchise minority voters in the past. And this problem is enhanced by further uncertainty surrounding the supposed alternatives.

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Again, artist is being asked to master a skill orthogonal to her art, despite her testimony that it won’t work for her, and we’re told she must have been doing it wrong despite the fact that she’s spent more time with video editing than the rest of us put together. This fits into the message that women and minority artists often get: your concerns don’t matter; your priorities don’t count. And when you lose one of these to a black screen, it doesn’t get made up by another piece of speech.

DMCA: Documentaries, Fictional Film, and Ebooks

We are seeking this renewal to preserve the fair use we reclaimed with the statement of best practices in fair use. The Interruptors, just on Frontline, had plenty of fair use clips. We just want it updated to deal with new technical standards from broadcasts and theatrical presenters. Any solution that involves licensing, managing copies, streaming—that involves us having to go and ask permission from the people we may be critiquing, parodying, arguing about—any of that is unacceptable. We are exercising a right: it is important not to require permission.

DMCA: Accessibility

The problem is that the stuff we release is open source, and so we wouldn’t be able to release our software without your DRM which is in violation of your license.

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Netflix just told a federal court in Mass. that they’d love to caption all their content, but we can’t do it because to do so we’d have to circumvent an access control. Huge fraction of online video comes from them. That’s in the public record.