Hold on there: Copyright Office ruling doesn’t give blanket protection to video remixes

The US Copyright Office and Library of Congress have made some much-needed rulings which clarify when it’s legal to break copy protection on things like DVDs, as well as stuff like jailbreaking phones to allow you to install software on them. It’s all good stuff, sensibly extending fair-use protections to people who ought to have them.

Lots of sites, of course, have taken the “easy page views” approach of leading on the iPhone jailbreaking angle, mostly without understanding that something not being a Federal offence doesn’t mean a company can’t put a clause forbidding it in a EULA or other contract.

However, Boing Boing and others have lead on the “protection” this gives people who rip DVDs to use clips in mash ups. This perhaps isn’t surprising, given that the EFF’s release specifically leads on “new legal protections for video artists”.

Only one problem: despite the implication, this ruling does not give a blanket protection to video mash ups, even for non-commercial use. What it does is specifically extend the existing protection that some academics had enjoyed to get round copy protection “for the purposes of criticism or comment” to all academic contexts, documentary film-makers, and other non-commercial uses.

The EFF even go as far as to say this in their press release:

“The new rule holds that amateur creators do not violate the DMCA when they use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose.” [My emphasis]

So if you’re making a non-commercial video about (say) science fiction movies (a piece of criticism or comment) you can clip away to your heart’s content. If you’re making a mash up of cats and Star Trek to amuse your 200 friends on YouTube, that’s not automatically protected – unless you can show, somehow, that it’s a piece of criticism or commentary on the original. Good luck with that.