The Difficulty of Choosing Something Beyond the (Mostly) Certainty of the Clearance Culture of Copyright

Credit: STS-41B, NASA  Explanation: At about 100 meters from the cargo bay of the space shuttle Challenger, Bruce McCandless II was farther out than anyone had ever been before. Guided by a Manned Maneuvering Unit (MMU), astronaut McCandless, pictured above, was floating free in space.

Credit: STS-41B, NASA Explanation: At about 100 meters from the cargo bay of the space shuttle Challenger, Bruce McCandless II was farther out than anyone had ever been before. Guided by a Manned Maneuvering Unit (MMU), astronaut McCandless, pictured above, was floating free in space. McCandless and fellow NASA astronaut Robert Stewart were the first to experience such an "untethered space walk" during Space Shuttle mission 41-B in 1984.

Critics of the limitations of the present copyright system often make suggestions like — Use Creative Commons licenses! Use public domain materials! Fair use is “use it or lose it”! And these are truly great suggestions, but the response is often “We want clarity and paying for materials — even if it isn’t needed this brings us clarity of use.”

Dido's Safe Trip Home Album CoverTwo recent examples show how far the “clearance culture” has gone are the Canadian Broadcasting Corporation (CBC)’s decision to no longer include Creative-Commons licensed materials on podcasts and the musical artist Dido being sued after using a photograph of an astronaut that has been in the public domain since its creation in 1984 for an album cover.

And yes, it might make sense that the CBC is being especially cautious to not mix commercial and non-commercial practices — and it might be that the astronaut in question does have persona rights, but that is not the message that the public is hearing. Instead, it is that pay-to-play is the only way to use creative material — otherwise you may get sued.

After all of the “sue your fans” Lars Ulrich-style RIAA lawsuits, what other message could the public be receiving at this point? The message being sent is “what fair use?” EFF is presently pursuing a lawsuit against Universal for their 2006 takedown notice for a half-minute clip of a baby bopping along to Prince’s “Let’s Go Crazy”

We see what happens when clearance culture is followed — money for all uses — and we see what happens when those who do not directly follow clearance culture are sued (or sent takedown notices). But we don’t see what happens in the aggregate when fair use is not even considered as an option — or when permission is asked for, and then denied (even in cases when fair use could/should apply).

(Dido case docket info: Bruce McCandless v. Sony Music Entertainment, 10-07323, U.S. District Court, Central District of California (Los Angeles))

(Prince Dancing baby case info: Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150  (ND Calif. 2008) and2010 motion for summary judgment by Lenz & 2010 motion for summary judgment by Universal)

The End of User-Generated Content? Nah. Maybe.

Only a few months after Clay Shirky’s book on the glorious new age of amateur content creation on the Web, Forrester Research
reports that social media content creation in the U.S.  – that means posting blogs, pictures, comments, etc. – has decreased since last year. From PC World:

Social media “creators,” which Forrester defines as users who have a blog, upload videos and music and write articles, shrunk from 24 percent of the U.S. online population in 2009 to 23 percent in the second quarter of this year, according to data from the report.

“Critics,” those who rate and review products, post comments on others’ blogs, participate in discussion forums and collaborate on wikis, dropped from 37 percent to 33 percent.

Likewise, “collectors,” Internet users who subscribe to syndicated feeds, tag Web pages and photos and in general organize content for the benefit of other users, fell from 21 percent to 19 percent, Forrester said.

Even “spectators,” the folks who read, watch and listen to what the “creators,” “critics” and “collectors” post online, dropped from 73 percent to 68 percent, according to Forrester.

Taking a look at the actual numbers, the decrease is barely significant. Could this be, however, the beginning of an ongoing downward trend in the coming years? Perhaps. Judging from the number of social media related job postings I’ve seen in the past 6 months alone, social media content, like blogging, is quickly becoming professionalized. Could that be where the amateur content creators are going?  There’s another theory, one that is noted at the end of PC World article:

A new category this year is “conversationalists,” whom Forrester describes as people who post status updates on social-networking sites and microblogging services such as Twitter. Thirty-one percent of U.S. Internet users fall into this group.

My thoughts? Social media and social networking  are becoming two distinct categories, divided by professionals and non-professionals. Therefore social media types will continue obsessing over monetization and ROI while social networkers will continue their conversations within their own personal networks. Social media may start to look more and more like traditional media with a distinct divide between consumer and creator.  But as social media becomes saturated by professional “creators” and “critics”, will “conversationalists” retreat elsewhere online?