If the Librarian of Congress’s July 26th ruling on the DMCA does nothing else, it makes the video extraction necessary for vids like this one not prima facie illegal:
While I can’t speak for the legality of this excellent Dr Who vid, though you know my opinion, this summer’s decision seems to mean that the act of extracting video is not inherently illegal because that act could be for fair use.
But consider a case where a clips was not obviously created for a textbook fair-use, the Temple brawl scene from Jesus Christ Superstar where women sell themselves in the market. (I used it in a blog series for Polaris Project this past summer.)
The blog series is an examination of 10 tough questions in the human trafficking movement, illustrated with examples of human trafficking from musical theater. The clip above is a small portion of a long movie, and the use is educational and non-commercial. Embedded in the Polaris Project blog, this clip’s use seems to me to be fair use according to the U.S. Copyright Office’s guidelines.
If I was teaching a 10 week classroom discussion series on human trafficking, and played this clip for my class, that would be textbook fair use. Does my use get less fair if that class is online? Does not require a password to access? What about if I uploaded the clip to my personal YouTube account for the class, but left it up for anyone to view after? Am I infringing on copyright? Should I assume I am?
If the YouTubers who uploaded clips from over a dozen musicals, some of them are clearly secretly recorded performances, had not done so, I could not have made my discussions of modern-day slavery as (hopefully) visually compelling. If the websites where fans post the complete lyrics to their favorite shows were taken down, I would have had to manually transcribe them from purchased recordings of these songs.
Simply, I would not have written this series if I had not had easy access to free lyrics and easily embeddable clips. The time and money needed to buy each DVD, rip clips and transcribe lyrics would have been too high for a volunteer blog series.
But does my fair use negate the other, less fair, uses these clips are probably put to? What if someone watches or uploads this clip just because he loves watching Pseudelous get whipped with a leggy-brunette’s hair in Funny Thing Happened on the Way to the Forum, and wants to share?
Is a professor who plays Beatles music to illustrate her course on the culture of the 1960s playing with copyright-infringement fire if one of her students is only taking the class to listen to cool music for free, and not to learn?
I believe non-commercial, fanworks should be presumptively fair use.
Without this presumption, it is only the imperfection of current copyright enforcement which is protecting fan creations like those above from the chilling effects of infringement lawsuits. If copyright laws as they are currently written were perfectly enforced as trade groups (like the RIAA and MPAA want them to be), I could not have written that blog series. We should not rely on imperfect enforcement to protect our culture.