The question, then, is why that same exemption is so restricted when it comes to filmmaking and the video essay.
A very brief* bit of background: The Digital Millennium Copyright Act essentially made it illegal for consumers to “rip” DVDs (and, later, Blu-rays) by prohibiting the development of software designed to circumvent the digital protections included on these discs. The film industry saw what happened to the music industry — where people purchased CDs, ripped their contents onto their hard drives and then distributed them to friends and strangers alike via the Internet — and hoped to avoid its fate.
Fair enough. But the problem with this anti-piracy solution is that it fundamentally infringes on fair use: If you purchase a film on DVD or Blu-ray it is impossible for the vast majority of people to legally incorporate anything from that film directly into a video essay or a documentary or a narrative feature. This is a slightly imprecise analogy, but think of it this way: It’s like downloading a book to your Kindle but then being forbidden from copying a highlighted passage into another document to quote it and having your brain scrambled so you couldn’t manually retype it.
In a blog post last week, the International Documentary Association wrote that it was pushing for the renewal and expansion of an exemption to copyright law that would allow documentary and narrative filmmakers broader access to copyrighted materials. From the IDA’s FAQ on the DMCA:
The current exemption restores documentary filmmakers’ fair use rights by allowing them to use material on DVDs in our films for purposes of criticism or commentary without fear of crushing liability—but it will run out in 2015. We are now seeking a renewal and modification of the exemption, one that covers makers of scripted film as well as other important sources of material like Blu-ray and digitally transmitted videos.
As the IDA notes, the exemption process is cumbersome and takes place just once every three years, an absurd length of time given the increasingly fast clip at which video quality is improving — and visual art forms are evolving.
The “video essay,” for instance, has exploded in popularity as high speed Internet access has increased and the tools needed to create such projects have plummeted in cost. “[I]n an age of hyper social media and over saturated online content creation, the video essay form was the perfect medley for retooling existing media in an effort to discover new meanings or alternative interpretations,” Nelson Carvajal wrote in 2013.
We see examples of this new form virtually every week. Sometimes it’s a new super cut; I particularly enjoyed the recent mashup of fake movies in movies by the Screen Junkies. Other times they take the form of an examination of a specific filmmaker’s tendencies, such as this look at Wes Anderson’s almost fetishistic predilection for centering his shots. And then there are documentaries, such as Thom Andersen’s brilliant “Los Angeles Plays Itself,” an almost-three-hour film examining the ways in which Los Angeles has been used by the film industry that failed to find distribution for more than a decade thanks to copyright concerns. (You can finally watch Andersen’s film on Netflix now.)
These works all exist in a sort of copyright limbo, vulnerable to takedown notices from a studio lawyer with a bit of time on his hands. The Copyright Office’s seventh proposed class of exempt works seems to give them some cover. But it is this enough? Should the creative class really have to fight this silly battle every three years? Isn’t there a space in the political ecosystem for a broader pro-user copyright reform? As Charles C. W. Cooke notes in “The Conservatarian Manifesto,” the youngest generation of voters isn’t terribly fond of government regulations stifling innovation.
“In my new book, ‘The Conservatarian Manifesto,’ I argue that the political movement that sides routinely with the Ubers and Air B ’n’ Bs of the world will begin to make inroads with a generation that is more comfortable with Lyft than with the taxi commission. I can only imagine that the same will go for copyright,” he said in an e-mail. “There is a thin line between borrowing and stealing, for sure. But at present the federal government is currently attempting to police that line with an iron fist that is wholly unsuited to the modern economy.”
There are few who deny that piracy is a bad thing or that the government shouldn’t crack down on those who sell pirated DVDs or make available for download films currently in the theater. But the law should focus on punishing that activity rather than crippling the ability of would-be artists to practice their form.
* For a more in-depth discussion of the DMCA and the Catch-22 style restrictions it has created, check out Christina Mulligan’s chapter in “Copyright Unbalanced,” a collection of essays by conservative and libertarian thinkers on the ways in which copyright protections have grown excessive.