Fair Use Versus New Formats

One of the most exciting areas of film and media studies emerging over the past decade has been videographic criticism, the use of sounds and moving images as the material for expressing critical analysis. I have been excited to have been a small part of this wave, as a member of the founding team launching the open peer-reviewed videographic journal [in]Transition (right here at MediaCommons), and co-directing a series of NEH-funded workshops on videographic criticism. There is no doubt that the fate of videographic criticism is tied up in issues of intellectual property, and that there are grave concerns for how we might be able to adjust to key issues in both policy and technology.

Videographic critics, like all American film and media scholars, critics, and students, have been allowed an exemption to the vast overreach of the DMCA's anti-circumvention measure, which forbids breaking encryption on copyrighted material, regardless of reason or use—through this exemption, we are legally allowed to rip video sources to use in presentations, embed clips in digital publications, or use as source material for videographic work, all of which are likely considered fair uses. DVDs are fairly straightforward for this practice, with readily available free tools like Handbrake offering accessible ways to assert our fair use rights; Blu-rays are much harder to rip, requiring proprietary software or complex configurations, but are still feasible if we want to access high definition quality. Such ripping has become increasingly more challenging as computers have moved away from being equipped with internal drives, requiring external hardware to engage with discs in any capacity.

Ripping practices are becoming even more difficult in the streaming age, as many titles are never released on disc at all. The tools for ripping online video range from easy plugins or websites to download YouTube videos, to poor quality screen capture software, to arcane top-secret techniques that pirate communities use to rip high-quality streams from Netflix and Amazon. The effect is that even though it is thoroughly legal for me to rip excerpts from a Netflix series to embed in a presentation or remix in a videographic essay, it is virtually impossible to access the technology to make such a rip in a high-quality format. Instead, it would be far easier for me to find an illegal torrent to download high-quality versions to excerpt or remix, creating the paradoxical situation that exercising my legal fair use rights requires me to violate copyright to access the source material, which then invalidates my fair use defense. Additionally, corporations like Netflix stipulate that ripping their content violates their terms of service, which is not a crime but could certainly prompt suspension of accounts or lawsuits, even for fair uses.

Such restrictions are a clear example of Lawrence Lessig's foundational claim that in the digital age, code can function as law, overriding legal rights such as fair use. Throughout its history, fair use has been a legitimate defense in charges of copyright infringement, but such cases rarely get that far in court. In instances like ripping streaming video, fair use is no defense at all, as the arcane arts needed to rip streams and associated violation of terms of service cannot be overcome by claiming fair use. Instead, what is really needed to allow film & media scholarship and videographic criticism to thrive in the post-disc world is a proactive rather than reactive approach to fair use: mandating that media companies make editable video files available to educators and critics, rather than forcing us to break laws and terms of service to obtain them. Until such (unlikely) policy shifts are made, our field will continue to reside in shadowy legal gray areas.

Works Cited:

Lawrence Lessig, Code: And Other Laws of Cyberspace (New York, N.Y.: Basic Books, 2000).


Thanks for this terrific article, Jason! I'm especially glad to hear someone bluntly addressing the challenges of streaming media for fair use. This is a minor note, but my understanding is that violating terms of service actually *is* technically a criminal offense under the 1986 Computer Fraud and Abuse Act and has, on rare occasions, been prosecuted as such (e.g., US v. Drew). This is problematic, as you point out, because violating TOS means the source material is not technically "legally obtained," which is a prerequisite for any exercise of fair use. The EFF has been supporting legislative reform of the CFAA that would decriminalize TOS violations https://www.eff.org/issues/cfaa but as you point out, even if it were legal to do so, it's nearly impossible to rip a high quality stream anyway!

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