Mashups, DVD Ripping, and Fair Use

Chris Soghoian at CNET Blogs published an interesting post yesterday -- Did Slate violate copyright law? It talks about a hilarious mashup video that Slate posted a few days ago called Hillary's Inner Tracy Flick, which juxtaposes images from the 1999 film Election and current footage of presidential hopeful Hillary Clinton. The mashup plays on the earnestness and ambition shared by Hillary and Reese Witherspoon's character in the movie -- Tracy Flick, a hyper-driven high school student seeking election as class president.

The clip is made up completely of preexisting footage, but it manages to pull off something novel, funny, and politically poignant. As Cynthia Brumfeld writes on IP Democracy:

Nothing in this video is 'original' although the video itself is without a doubt a work of originality and creativity. It also brilliantly makes a political point.

Brumfeld's post is worth reading in its entirety; it uses the Slate mashup to contrast the differing views on fair use held by ubiquitous Columbia law professor Tim Wu and NBC counsel Rick Cotton, as found in the excellent online debate on remixing and fair use published in the New York Bits Blog last week (another must read). I believe, and Wu and Brumfeld would agree, that the Slate mashup is a fair use because it is clearly transformative and it adds value to the original rather than substituting for it.

But let's get back to Chris Soghoian. He makes a simple and incisive point. Forget about fair use, he says, because it's clear that whoever made the Slate video must have ripped the movie footage from a DVD. That means that the mashup maker must have circumvented the DRM on the DVD (probably using DeCSS or something like it) and must therefore have violated 17 U.S.C. ยง 1201(a), which prohibits "circumvent[ion] of a technological measure that effectively controls access to a work protected [by copyright]."

Soghoian's post is useful because it points out a key aspect of section 1201: the "anti-circumvention" provisions of the DMCA pay no mind to fair use. That is, it does not matter a fig whether you want to put the locked-up material to a fair or an unfair use, the violation is in circumventing the DRM, not in any alleged infringement of copyright. The Slate video provides a concrete example of why this is a problem: It is wrong-headed from a policy perspective that the simple technological steps necessary to create this hysterical mashup, which itself is likely a fair use under copyright law, could subject its creator to liabiity.

So far, no Hollywood lawyers have come threatening a lawsuit (at least not that I am aware of). This is undoubtedly a good PR move on the part of the studios. Soghoian appears to relish the idea of a confrontation, in the hope that public outrcry could precipitate an overhaul to the DMCA. I hope that the clip stays up; I'm not so optimistic about the prospects of copyright reform these days.

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