Author Fred von Lohmann discusses the role of the 'gatekepers' (such as exhibitors, insurers, distributors, and broadcasters) when filmmakers may have to clear copyright uses in their own works. While fair use is supposed to protect the transformative uses of copyrighted materials, many gatekeepers and large broadcasters and studios are failing to honor the principles of fair use. Instead, we are seeing more of what von Lohmann calls a 'clearance culture' in which full expression is stifled at the hands of media gatekeepers. The content controllers are requiring clearances for every instance of copyrighted material in films, even if it falls under fair use. This is causing many films either to be abondoned during production or distribution or for filmmakers budgets to be severely drained by obtaining clearances. In terms of relevance to my own project, the role of the gatekeepers helps to explain why the full potential of online film distribution has not yet been explored. Although this article focuses mostly on fair use and copyright clearance, when I read this article it made perfect sense why some directors (such as the more established Edward Burns or the newcomer Madonna) reject the traditional distribution system for many different reasons, and choose to distribute through online platforms such as iTunes.

The rise of internet distribution offers new outlets for filmmakers who can not afford the traditional methods of distribution. von Lohmann identifies two distribution options: video hosting sites such as YouTube or Yahoo Video that can get your film to an audience for free and immediately, as well as by purchasing bandwidth from an ISP and running your film online via a filmmakers' own server.

Internet gatekeepers such as a YouTube or an ISP are more lax than traditional ones due to the safe harbor provisions of the DMCA. In the case of online video content sites, they use a 'notice and takedown' policy to enforce copyright infringement violations. In order for a video hosting site to be free from monetary damages incurred through a copyright infringing video posted by a site user, the host must issue notice to the user that the content requires them to takedown their video, followed by a 'counternotice' option for the user's benefit in the event that a user wants to challenge the takedown. So long as the site removes the copyrighted content in a timely manner and follows this procedure, they will remain exempt from prosecution.

If a filmmaker decides to host his own video by buying a service from an ISP, a similar safe harbor under the DMCA protects the ISP's from any possibly copyright lawsuit. Under this provision, ISP's are not required to follow the 'notice and takedown, counternotice' steps as outlined above. They are viewed as only the 'pipe' in providing access, not an entity that can enforce the content present on computers owned by others and therefore out of its control. As in video content sites, ISP's do not act as middlemen in any copyright lawsuits, therefore leaving the filmmakers or other users to work out their own disputes with copyright owners directly. 

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.

            This case was brought to raise questions about the legality and constitutionality of the Digital Millennium Copyright Act. The argument is that "the DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers," and that they also "violate limits on the scope of copyright protection required by the First Amendment." The first part says that the Intellectual Property Clause does not give the authorization that anti-device provisions give, which allow technology to be banned regardless of how the device is actually used. The second argument is that in the anti-device provisions, Congress overstepped the authority given by both the Intellectual Property Clause, and the Necessary and Proper Clause, and upset the balance created by the Intellectual Property Clause, resulting in the monopolies that the framer sought to avoid. The third argument is that the Commerce Clause does not empower Congress to override other constitutional constraints. The fourth argument is that anti-device provisions violate First Amendment Limits on the scale of copyright protection.

            I am researching why copyright holders in the case specifically of major record labels are willing to waive their copyright in certain situations such as MP3 blogs while choosing to exercise the copyright in similar situations such as peer-to-peer file-sharing networks. The case is relevant although it is not about blogs in that it provides an argument against a proposed end goal for copyright holders, the DMCA's anti-device provisions. The argument is that it upsets the balance intended between copyright and censorship and monopolies. Anti-device provisions would ban many devices even with commercially significant uses and would contradict fair use and First Amendment arguments, and would effectively end any possibility for use of technology such as MP3 blogs.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

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.

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. <http://www.copyright.gov/legislation/dmca.pdf>.

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.