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)

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‘Cause we’re freak remixers baby!: Lady Gaga and remix culture

On this blog, we write often about the value of fan-created works, about how fans use their creativity, using works created and owned by others. And fans of Lady Gaga has been very busy, remixing and reusing both the video and song, Bad Romance. They vary in quality and skill, but most convey the message of “This is so cool — and I want to be part of it!”

Additionally, complicating matters, legally there is a difference between the use of a work in the entirety (such a cover version) and sampling, and between using the style of a video and the music — but for fans, these distinctions don’t exist. And the parody (making fun of this work) / satire (using one work to make a statement about something else), truly falls apart in the midst of montage/collage/remix culture, where one work can simultaneously have multiple messages.

Two years ago, American University’s Center for Social Media released a study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, suggesting strongly that remix culture is not only socially acceptable, but should also be legally acceptable because transformative reuse falls within the fair use exception/defense to copyright.

Lady Gaga’s Bad Romance song and video have proven to be the source material for all but one type of the nine types of reappropriation discussed in the study.

The types — in order of their frequency in my wholly non-statistically valid study (i.e. I watched lots of videos!), considering different types can exist in the same video:

  • Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work: I subdivide these works into two different categories — the homage and the sample — both used extensively by remixers of Lady Gaga’s work.
  • Positive commentary: Copyrighted material used to communicate a positive message: Such as taking the “We traveled 10,000 miles to say we love you, Lady Gaga” approach.
  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians: Lots of examples, but have yet to find a good one.
  • Negative or critical commentary: Copyrighted material used to communicate a negative message: Many of the parody/satires included negative views of Lady Gaga, especially her physical appearance.
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse: Such as commenting about Lady Gaga’s support of the GLBTQ community
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound: Such as quick, small, samples.

For these next two types, I don’t have examples below the jump — considering the always existing threat of takedown notices, I don’t want to be responsible for publicly pointing out kids having fun at concerts!

  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience
  • Incidental use: Copyrighted material captured as part of capturing something else

The one type missing missing from these reuses is:

  • Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy. While Lady Gaga is controversial, there isn’t a need to archive this specific time.

Below are examples of some of these varied uses of the original — starting with the original official music video — from the official YouTube Channel.

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My AALS Presentation: Cutting the Gordian Knot: Possible Solutions to the Conflict between the Gift, Work-for-Hire, and Market Models for Academic Work

This is the abstract and a short conclusion from my recent AALS presentation; the article will be published in IDEA: The Intellectual Property Law Review. Also, for a longer version, read Rebecca Tushnet’s writeup of my presentation of an earlier draft at the 2009 IP Works in Progress conference.

Academics are involved in an unique circular relationship to intellectual property. They build their work “on the shoulder of giants” – building on the expression of ideas by others, often being paid for work relating to their production of copyrighted materials, yet the custom is for them to retain copyright.

Academics then gift, sell, or license their works to publishers, who then sell or license these works back to the institutions that were the underlying support for their creation. This leads to several unfortunate situations: institutions paying for work twice, academics holding the inaccurate viewpoint that they can use copyrighted materials as long as they are for educational purposes, and academics technically being unable to reuse or revise works once their copyright has been transferred.

Further complicating the situation is language in the licenses for many of the databases that academics use – explicitly rejecting use for non-educational purposes or commercial purposes.

My forthcoming article discusses the development of the teacher exception to copyright through both common practice and case law, but will focus primarily on the potential solutions:

  • contract: explicitly changing the contract terms of employment;
  • statutory interpretation: by interpreting fair use broadly to more explicitly include educational use by the institution that pays for the work’s creation;
  • statute: creating an exception to copyright similar to public access to government funded research by the National Institutes of Health (42 USC § 282c (2009)); and
  • license: creating an open access / institutional repository to create an access point for faculty research, similar to the new policy followed by the Faculty of Arts and Sciences of Harvard University.

My Solution

A Multifaceted Institutional Repository to suit the needs of institutions and faculty:

  • To include all published academic works produced through institutional funding
  • Allows for portability for faculty from institution to institution
  • Will have buy-in from all levels – prefer mandate approved by faculty
  • Will allow for other faculty at the funding institution to use without needing to be concerned about permissions
  • Use present open source searching and later searching improvements
  • Allow for additions to the repository to be made by
    • Author, publisher, or institution (such as through the library)
    • Would allow for a delay (as with NIH mandate of placement in repository within 12 months)

Want more? Including why law review publishing is an ideal place to start creating an effective cross-? Then you’ll need to wait for the article!

I Read a Book: Greg Kot’s Ripped: How the Wired Generation Revolutionized Music

Greg Kot’s Ripped: How the Wired Generation Revolutionized Music is a must-read for those interested in how economics combined with listener actions have led the traditional music industry to its present morass. And therefore, the subtitle should be: How the music industry decided short-term profits were more important than life-long fans.

While I prefer a more linear style, the book is written in chapters focusing mostly on one artist or group per chapter — which makes sense, considering this is a work of music journalism. I appreciate that Kot, a non-lawyer, explains the law and cases correctly (yet with the dismayed “this is really the law?!?” tone needed). And while not using the terminology of one thousand true fans, he explores what having dedicated fans means for bands now — versus under the old regime.

But there are some seriously odd moments while reading as a fan. I’m not really sure why when describing the backstory of Metallica, Dave is mentioned, but there is literally no mention of Kirk! (Or Cliff. Or Jason.) But I’m digressing…

I expect a certain degree of errors in any work, but please, dude, know your halos! Any NIN fan knows that Broken counts. Especially when writing about T.R.’s dealings with record companies.

Commercial versus Non Commercial use?

Creative Commons licenced work by dbking

Creative Commons licenced work by dbking

Due to the difficult line determining what is commercial and non-commercial use of copyrighted materials, Creative Commons has recently completed a study regarding this issue — with surveys of both content creators and users (PDF full report here). This study has lots of interesting  information for the fan-creative-remix community.

The study’s findings include that

Many group participants noted that there are promotional and thus potentially economic or commercial advantages to creators in connection with releasing content freely for noncommercial use. For these creators, “credit” for permitting noncommercial use is very important, and the question of attribution is something that gets factored into their consideration of when a use is acceptable. … As a practical matter, many seem to consider noncommercial use as having minimal or indirect commercial impact, rather than absolutely no commercial impact.

What about users?

As do creators, users often approach the question of noncommercial use on a case-by-case basis. Paralleling many creators’ approach to deciding when to allow or license a noncommercial use, many users also explained they use content guided by their own principles or personal rules of thumb, or in accord with practices followed by other users, which they hope creators are more likely to accept, on a “safety in numbers” theory. Verbatim examples of how some users articulate their understanding of when a use is noncommercial include:
· “if it’s for education or personal use”
· “if it does not compete – noncommercial is really non-compete”
· “if the creator is getting promotional value”

Jessica Litman in Lawful Personal Use suggests that personal uses of copyright works arguably *is* outside of copyright protection.

So how does the study respond? It alows for leaning towards that direction:

users are much more likely than creators to rate personal or private uses as noncommercial, and there is strong consensus among users on this point. Thus this particular use scenario, at least as rated by users, stands out from all the others as being the most ‘definitively’ noncommercial …. Creators also agree that personal or private uses are the least commercial of all scenarios measured, but it is striking to have this one instance in which users believe the use is even less commercial than creators.

I read some books: Copyright Blues

This was supposed to be a book review of William Patry’s new book, Moral Panics and the Copyright Wars. However, while reading this book, I kept thinking back to Mark Helprin’s Digital Barbarism. Patry looks over the history of copyright and how we got to the place we are at — where many ignore copyright, yet punitive measures are used; Helprin looks to an idealized past, where life was slower, and copyright bandits are ruining his nap (and his grandchildren’s earnings).

In some ways, these books are telling the same story — something is very wrong with copyright and unless something is done, the situation will become untenable.

Ed with Betamax On Cowboy Bebop

Ed with Betamax On Cowboy Bebop

However, they approach the situation very differently.  Patry’s book is a seamless academic analysis of why our present copyright situation is based on panic. One of the most interesting sections in the book analyzes Jack Valenti (head of the RIAA)’s race-baiting analysis of the evils of the VCR. And about the dangers of extended copyright terms — assuming U.S. law or Japanese law applies, the Betamax tape at issue in this episode of Cowboy Bebop is still copyright-protected. In 2071.

On the other hand, Helprin writes about how the moral fibre of our country is tied into traditional ways of living, and copyright — and puts an often nasty and personalized spin on “kids these days with their newfangled ways and their [rock and/or hip-hop music]!”

Patry: Highly recommended for academics and those who can’t get enough of copyright. For more from Patry — and likely in a format more palatable for the non-academic, check out Patry’s book blog.

Helprin: Perhaps his fiction is better, if you like to learn more about the lives of men from the past (seriously, just read the opening “man of leisure”/ George Jetson salvo). And for an analysis of his errors, read Lawrence Lessig!

Operation Hot News, or Making the News Friends-Only

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

The newspaper industry is having severe problems, but is changing copyright law the way to fix things?

Richard Posner, highly regarded intellectual property scholar and Federal judge, suggested a drastic change recently:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

But while many others have discussed this proposal, a culturally valued way of solving the issue may be available — if the problem in search of a solution is indeed the problem of free riders through aggregation: Citation! and more generally, Attribution!

Presently, in U.S. copyright law, those who reuse copyrighted (and public domain) materials have no responsibility to attribute the works to the author. However, in countries that include moral rights as part of the intellectual property right, attribution is required. And even Creative Commons, which once had attribution as an option, now includes attribution in all of its licenses.

Traditionally, journalists have not always cited back to the original source, so this would require a change in style guides and editorial standards. But if what needs to be curtailed is “free riding” — then ownership over the news isn’t going to solve the issue.

But what about the “hot news” doctrine? Based on this doctrine, AP News recently settled a case with an online news aggregator (for law-talking people, the motion to dismiss decision is found at AP v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D. N.Y. 2009). So should everyone that quotes news be concerned that the news is now locked away? This misappropriation claim is state-specific. For example, in New York, this claim only applies where all five  factors exist:

  • information is generated or gathered at a cost
  • the information is time-sensitive
  • the use of the information by someone else constitutes free-riding on the generator/gatherers’ efforts
  • the user of the already gathered information is in direct competition with a product or service offered by the gatherer
  • the ability of other parties to free-ride on the efforts of the gatherer or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (quoted/paraphrased from NBA v. Motorola, 105 F.3d 841 (Second Circuit, 1997)

Changing the standard towards more citation and attribution will help the public understand where news is coming from.

After all, if everyone needs to cite who broke the story — yet continues to be able to use the information from that story, it would allow for, hmm, news reporting, to continue. The idea that the first-on-the-scene would be able to prevent others from being able to expand, develop, or critique the news would complete the destruction of the Fourth Estate, rather than saving it!