This legal analysis by Fred Von Lohmann of the Electronic Frontier Foundation is empathetic of the McCain campaign’s fair use/YouTube problem, as the EFF has been championing internet freedom and fair use principles for many years. However, he is highly critical of McCain proposed solution, which would put the burden on YouTube to conduct legal reviews of videos posted by political candidates that receive takedown notices. He thinks this notion is backwards, since in terms of political speech, amateur commentators are the ones that need special protection from phony takedowns. Despite the failings of the McCain proposal, he goes on to identify the true problem in these situations: the news media organizations. He believes it is their responsibility to refrain from sending bogus takedown notices for legitimate fair uses. As for a recommended response by the public when they don’t, he encourages public shaming of the companies, as well as potential lawsuits for submitting a takedown they knew was illegitimate. He also supports the claim made by the McCain campaign that it is not incumbent upon YouTube to follow this strict procedure in the case of fair use, which YouTube itself could reasonably determine with human intervention.
Lohman’s analysis will be useful in that it finds fault with all parties involved in the process: the alleged infringers, the copyright holders, and the host. He also puts forth a compelling reason why McCain’s solution would not be ideal from a societal point of view. The actual reason McCain’s proposal was rejected was because YouTube said that their hands were tied in the process; Lohman says that even if YouTube could treat politician's videos differently, they still shouldn’t. The author is transparent in placing most of the blame on the news organizations themselves. Other articles refrain from making the obvious claim that if it weren’t for the media foolishly asserting a broad claim to copyright, this wouldn’t be a problem. Finally, he corroborates the assertion made by the McCain campaign that YouTube does not necessarily need to act with as much immediate speed as it says it does.
Blizzard Entertainment sued a group of volunteer gamers who created free, noncommercial, open-source software to allow Blizzard game owners to play the games over the Internet. Claiming that the gamers reverse engineered Blizzard’s own Battle.net server software to make their own BnetD server software, Blizzard cited anti-circumvention violations of the Digital Millennium Copyright Act. Both Battle.net servers and BnetD servers were available for free online to enable online game play. However, BnetD was created as an alternative to Battle.net to fix some connection difficulties that some users encountered while using Battle.net.
Blizzard attempted to stop distribution of BnetD, alleging that the software has been used to permit play of pirated Blizzard games. However, the volunteer developers did not design BnetD for this purpose, nor were they are using BnetD for this purpose. The free software was a legitimate use and could not be bluntly labeled as a piracy device. Blizzard argued that the developers reverse engineered sections of the game, thus violating Blizzard’s End User License Agreement (EULA). The Electronic Frontier Foundation (EFF) represented the programmers and declared that BnetD was a legal free product which worked with the original product in order to benefit game owners. The court ruled in favor of Blizzard, ultimately stating that reverse engineering and emulating of Blizzard software in this case were illegal.
The consequences of the ruling were detrimental to game upgrades and user enhancements. If this decision set the precedent, user-developed programs that work with original products would be banned. Furthermore, consumer choice would be limited by the available products. Since users would only be authorized to use a certain company’s products with that same company’s accessories together, this would have a profound impact on software and game products. In a similar analogy, imagine if Brand A’s eraser had to be used in conjunction with Brand A’s pencil. What would happen if computer users were forced to run only Microsoft products with Microsoft Windows? What if gamers could only play certain games with specific designated programs and accessories? Inevitably, such precedent would drastically reduce competition in the marketplace in addition to loss of both innovation and user-generated creativity.
Newman, Jon O. EFF: Appellate Decision in Universal v. Reimerdes. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html>.
This famous court case involved the publication of the "DeCSS" decryption program on the website 2600.com. "DeCSS" was designed to break through the CSS encryption on DVDs. The action of posting this program challenged the Digital Millenium Copyright Act which bans any measure of breaking through digital encryption, or any publication or distribution of any such measure. Eight film studios, including Universal, brought a suit against the operators of 2600.com, seeking to have "DeCSS" and any links to other sites containing it removed from 2600.com for violations of the DMCA.
The appeal challenged the constitutionality of the DMCA, claiming that it restricts free speech, and called for a narrow construction of its terms. They also claimed that "is rooted in and required by both the Copyright Clause and the First Amendment," and that the DMCA restricts this. However, the appeals court found no reasoning for these claims, and upheld an earlier injunction by a lower court requiring the removal of the "DeCSS" program and any links to it.
This case is extremely important because it establishes that arguments regarding fair use and free speech are almost no match for the terms of the DMCA. Were it not for the DMCA, I think it would definitely be easy to argue for my video project as a fair use; however, cases like this clearly state that this is no defense. The court states that there is no constitutional requirement for a fair use standard, and that such claims cannot supersede violations of anticircumvention laws.
Electronic Frontier Foundation. EFF: Unintended Consequences: Seven Years Under the DMCA. Electronic Frontier Foundation. 28 November 2006. .
This article tracks the continued influence of the Digital Millenium Copyright Act, specifically the "anti-circumvention" provisions of Section 1201, throughout its first seven years in effect. The Electronic Frontier Foundation argues that the DMCA has not been used as a method of blocking piracy and devices used to perpetrate it, as Congress intended it; instead, the DMCA has become a tool for big businesses to eliminate potential competition and a blockage to fair use, creativity and technological innovations. Because the DMCA "chills free expression and scientific research... jeopardizes fair use... impedes competition and innovation... [and] interferes with computer intrusion laws", the EFF argues that circumvention must be permissible. The article also contains an exhaustive list of court cases in which the DMCA has been a key factor.
Full knowledge of the restrictions of the DMCA and a general sense of the ways in which legislation has surrounded it is absolutely vital for the creation of my project; the essential goal of my project is to make a challenge to the DMCA and the restrictions that it has placed on artists, specifically in terms of digital video.
Electronic Frontier Foundation. EFF: Digital Video Restrictions. Electronic Frontier Foundation. 22 November 2006. <http://www.eff.org/IP/digitalvideo/>.
As could be expected from an article written by the Electronic Frontier Foundation, this article was firmly opposed to DRM and DMCA restrictions. It gives a general overview of the ways in which digital video technologies are encrytped, and accuses Hollywood of using "scrambling, down-rezzing, and a host of other restrictions" for purposes that have nothing to do with their originally stated intent, the prevention of piracy. Most of the article is occupied by a listing of the ways in which DRM is used on a different digital video technologies, from DVDs to cable TV; each of these descriptions also lists "Why It's Bad" and the ways in which the EFF is planning to fight the restrictions. At the bottom of the web page, there is even a listing of ways in which Hollywood is attempting to expand restrictions on video technologies, from to filling in the "analog hole" to blocking the creation of unrestricted video outputs; each of these newer techniques also has a listing of the ways that the EFF is fighting against it.
This sort of information will definitely be very important to my project, as the project itself relys on avoiding DRM to use clips from DVDs. Although it is, at the moment, rather easy (albeit illegal) for anyone with certain technical knowledge to bypass the CSS encryption on a DVD, expanding control over these technologies (as Hollywood seeks to do) could definitely make it nearly impossible in the future. This could have many consequences for the creation of appropriation art pieces; I think it would be interesting to judge how a project such as the one that I am working could be created if Hollywood does get its way.