I read a book: Cognitive Surplus: Creativity and Generosity in a Connected Age

Until recently, Clay Shirky was best known as the author of Here Comes Everybody: The Power of Organizing Without Organizations. The book  was widely praised (seriously, Boing Boing calls it a “masterpiece”) and is still referenced  by social media strategist/expert/guru types as a must-read for anyone looking to explore the social dynamics that drive the use of technology, which at the time (and even now, to a certain extent) is not what drives most conversation about the internet and social media in particular.

Rather than focusing the catalyst of online social behavior on specific technologies  (i.e. what makes Facebook so popular?) Shirky argued that social tools facilitates common group behavior, conversation and social interaction. At the time, the beginning of Facebook’s online dominance and in the midst of growing fascination and panic about social media from the mainstream press. Shirky presented a reasoned, articulate and well-researched argument that the idea of “crowdsourcing” was not a new idea, but actually rooted in common, even traditional social interaction. The Internet just made that interaction happen more widely and more rapidly.

If you talk to any social media/internet  “expert” or “enthusiast” these days, this perspective is seen as common knowledge, but without Shirky’s well-presented theory and research to bolster this theory it wouldn’t have taken root.

In 2010, you’d think that this argument wouldn’t need repeating or clarification, but as traditional media continues to evolve and digital use continues to grow and become more ubiquitous, the panic of social theorists and mainstream media commentators continues unabated. The continuing debate of whether the Internet makes you smarter or more stupid seems to have a new chapter each day, but in Cognitive Surplus, Shirky’s latest book, he does add fuel to that fire, but also offers a modified version of his Here Comes Everybody thesis: The Internet has given us the tools to create, publish and share media  faster, cheaper and with more people than ever before

Shirky’s revised thesis is the reason that I think Cognitive Surplus is a must-read (there’s that term again) for media professionals in every field.

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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!

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.

In a Barbie World?


I come neither to bury Barbie nor to praise her, but to acknowledge her larger cultural role, after turning fifty this year.

And she has played an important role in several reported IP disputes (and many more unpublicized ones) — and likely more in the future. I think an entire intellectual property class could be built around Barbie — considering that are publicized claims/suits on copyright, trademark, and trade secrets.

So what makes Barbie matter so much?

For most girls in the U.S. and in many other countries, playing with Barbies is part of their childhood–dressing them over and over again, putting their ridiculous shoes on after falling off, taking them out for a drive in her RV, arranging the furniture in her dreamhome. Oh, and arranging the most scandalous weddings! In many families, Barbies are passed down from sister to sister, mother to daughter (assuming that they survive having their heads popped off, fighting with G.I. Joes, and being parachuted out windows).

The Barbie experience is part of the cultural memory of girls and women, despite the brand being owned by Mattel.

According to Naomi Klein in No Logo, the lawsuit against Aqua’s Barbie Girl:

highlighted the uncomfortable tension between the expansive logic of branding — the corporate desire for full cultural integration — and the petty logic of these legal crusades. Who if not Barbie is as much cultural symbol as product? Barbie, after all, is the archetypal space invader, a cultural imperialist in pink. She is the one who paints entire towns fuchsia to celebrate “Barbie Month.” She is the Zen mistress who for the past four decades has insisted on being everything to young girls — doctor, bimbo, teenager, career girl, Unicef ambassador….

So what makes *this* use of Barbie acceptable, yet Barbie Girl isnt?

So what makes *this* use of Barbie acceptable, yet "Barbie Girl" isn't?

According to the Barbie website,

Creativity and inspiration is in Barbie® doll’s DNA. Artists and designers from around the world have been inspired by her, whether using Barbie as a muse for fashion design or using the famed image of Barbie for a painting

While supporting some artistic reinterpretations of Barbie, Mattel, the owner of Barbie, has been very aggressive in defending their intellectual property rights.

This could be considered *not* cultural critism?

This could be considered *not* cultural criticism?

Aqua’s Barbie Girl (video above) is only the most well-known of the Barbie cases, but some other famous cases of aggressive IP protection include: Distorted Barbie and Forsythe’s Food Chain Barbie.

According to Freeculture.org:

The Forsythe case highlights the increasing challenges faced by those who wish to comment on popular icons, symbols, or cornerstones of culture, most of which are copyrighted by large corporations. “If you want to talk about the problems with society, all of the widely recognized figures are copyrighted,” says Nelson Pavlosky of Freeculture.org. “In the past, cultural icons belonged to everyone…[now] if you want to use a relevant character to critique society, you’ll get burned by companies who can silence you, not by winning in court, but by outspending you and forcing you to cave in or lose all your money.”

And Barbie has lived up to the last sentence — challenging some very obvious cultural critiques with small pockets. Adiós, Barbie is now a website (and blog) about positive body image for girls and women, though it started as a book, called Body Outlaws: Rewriting the Rules of Beauty & Body Image for its third edition:

The book book launched in 1998 under the name Adios, Barbie. It was all good for a year, until Mattel delivered my publisher a lawsuit, claiming a trademark violation. Shunned from the Dreamhouse, we agreed to change the book’s name and cover.

But what about the idea of a Barbie mashup? New York Law Revue’s Bar/Bri Girl (video above) takes the idealized clueless version of Barbie — as seen through the lens of Aqua — and pairs her with Bar/Bri, the law bar prep service. While both Bar/Bri and Aqua’s song are the focus, the cultural influence of Barbie is evident.

Original Flavor -- Barbie as Mashup, Star Trek Style

Original Flavor -- Barbie as Mashup, Star Trek Style

One final note, while trying to find pictures to illustrate some of the points made in this post (“fair use”!), I decided to go to the source — Barbie — rather than just doing an Google image search, or from news articles, or from sellers. When I found pictures and tried to copy, this was the pop-up:

This image is copyrighted, and it is owned by Mattel.  You may not reproduce, distribute, publish, transmit, modify, adapt, translate, display, sell, license, publicly perform, prepare derivative works based upon, or otherwise use or exploit this image.

New! Barbie as Mashup -- Star Trek style

New! Barbie as Mashup -- Star Trek style

Wow! It seems like Barbie doesn’t just think math is hard — but still  really doesn’t like fair use!

Center for Social Media’s Best Practices: Now in tasty video format!

The Center for Social Media just released the above video, Remix Culture: Fair Use Is Your Friend, to help illustrate the Code of Best Practices in Fair Use for Online Video, that was released in July 2008. While I’m glad that there are best practices that address the interests of other communities, having a best practice guide for remix culture is so important — considering the community is so diverse and diffuse!

The video identifies six types of potential fair use :

  • Commenting or critiquing of copyrighted material
  • Use for illustration or example
  • Incidental or accidental capture of copyrighted material
  • Memorializing or rescuing of an experience or event
  • Use to launch a discussion
  • Recombining to make a new work, such as a mashup or a  remix, whose elements depend on relationships between existing works

The Fair Use Code is one of the “best practices” created by the Center, including:

There are other best practices guides including:

While the best practices can’t state something is or is not fair use definitively, by offering guidelines these best practices help people who are being creative understand what are the reasonable limits of fair use. One of the advantages of the best practices is that they are limited to within communities, thereby allowing the best practices to be  based on how people actually use materials within their community. But the best practices are not only for those in the community, but also for outsiders who set limits on distribution of created works, such as insurance companies (documentarians!) and ISPs (responses to takedowns).

And if you want a snapshot of remix culture from about two years ago, take a look at this video by the Center for Social Media!

The problem with decontextualization of intellectual property’s cultural role, or why an algorithm cannot determine fair use

Ignoring cultural context has led to some incredibly bizarre cease-and-desist notices recently. Yet intellectual property and culture are tied together. New works are not created Zeus-like bursting forth Athena-style ahistorically with no need for citation or attribution.

In a recent post on the University of Chicago Faculty Blog discussing the need for social and cultural theory in analyzing intellectual property, Madhavi Sunder quotes Henry Jenkins in Convergence Culture, that it is a

“paradoxical result” where “works that are hostile to the original creators” have “greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions.” (190)

While technically this is true in the American context, considering that fair use more carefully covers parody than homage, the new non-human computerized “catch-a-copyright-tiger (read pirate!)” lumps all uses together, whether it is one or a combo of:

fair use, parody, satire, homage, send-up, take-off, quoting, remix, mashup, sampling, fanmade, or any other arguably legal use here.

So what does this mean in real life?

Laurence Lessig’s video above has been blocked by YouTube — it is available here from another video service. And why?

“Your video, Part 2: Lawrence Lessig – Getting a Network the World Needs at OFC/NFOEC 2009, may have audio content from Mahna Mahna by The Muppets featuring Mahna Mahna & The Two Snowths that is owned or licensed by WMG.”

Avatar

The IP algorithm can also strike at the heart of cultural criticism. One recent example is a fan campaign calling for the recasting of the live action version of the animated series Avatar: the last airbender with Asian and other minority actors.

According to Glockgal:

All but one of the products on my racebending.com Zazzle store has been removed because “it contained content in violation of Viacom’s intellectual property rights”. This means not just images (all of which were drawn by me), but also WORDS.

Apparently a t-shirt saying ‘Aang can stay Asian and still save the world’ is a copyright violation

The Organization for Transformative Works blogged that the removed items included

“The Last Airbender: Putting the Cauc back in Asian” or “The Last Airbender: Brown/Asian/Colored Actors NEED NOT APPLY”. These design were entirely textual, and obviously political: Glockgal called her store Racebending.com and contextualized its products as a form of political activism: “Stop Hollywood White-Washing of the upcoming movie The Last Airbender!” … since when does [any company] own political speech about its products?

While this story has a successful end, why should preemptive removal be the way that corporate entities react? Because the law is written in a way that fair use is a postaction shield rather than as an anticipatory safeguard — even when the use is culturally significant.

Self-pwnage

But perhaps the best example of why the default should be changed to assumed fair use is self-pwnage — where a company can say “use away!” and “not OK” at the same time.

Recently, Fox had a YouTube user’s account suspended for participating

in a Burger King-sponsored mashup promotion on YouTube, where users were encouraged to use a web-based voiceover-creation tool to dub over videos from Seth MacFarlane’s Google-distributed Cavalcade of Cartoon Comedy series.

This isn’t new. Back in 2006, pre the word self -pwnage, though Cartoon Network’s New Media Department decided to place information on YouTube to help fans create their own commercials, the legal department sent out cease and desist letters. In an important moment of honesty, Molly Chase, Executive Producer of the New Media Department said, “Putting the content out there consciously is something we want to do, but we have to communicate that very well internally.” If corporations can’t even figure out what their position is on fan use, why should fans or the public be the ones that pay? Or to determine the outside limits of fair use?

Sunder says that

Culture is the sphere in which individuals create meaning, share ideas and enjoy life with others. Furthermore, culture plays an increasingly important role in promoting freedom in the social, political, and economic spheres of life. Cultural approaches to intellectual property law ought to recognize these interconnections.

Our MIT6 Conference Presentation: The Intellectual Property of Remix Culture

After a truly great time presenting about fan culture two years ago at MIT5: Creativity, Ownership, and Collaboration in the Digital Age, we presented at the Massachusetts Institute of Technology’s Media in Transition Conference — this year entitled MIT6: Stone and papyrus, storage and transition (MiT 6). While our conference summary is forthcoming, here is our presentation (originally entitled: The Intellectual Property of User-generated Content), though the full paper will be on the conference website:

Generators of remix culture create communities and content, making the intellectual property of others more valuable, but receive no compensation for their work that increases the value of another’s property, and receive little to no rights in what they have created or added. Our presentation focuses on a particular sub-set of user-generated content: derivative/ transformative works of creativity – such as music videos (or vidding), fan-fiction, fan-zines and websites – though it could be applied to any situation where there is tension between a corporate content owner and its audience about ownership of the “brand” usually due to concerns of degrading market value or anti-piracy.

Pwnage

So what do we mean when we talk about intellectual property? To greatly simplify, we are focusing on copyright and trademark. In the U.S, copyright attaches to works immediately, once a creative, intellectual, scientific, or artistic works is fixed in a tangible form — and exists for life of the creator plus 70 years. The right to create derivative works is given to the creators — but there is fair use that allows others to use copyrighted works. Trademarks are the “branding” imagery plus auxiliary content (Apple brand computers, Apple brand music providing network (iTunes), Apple brand symbol, etc.) — and require registration, can be kept forever, yet need to be protected to be kept. An additional complicating factor are licenses — either for use of specific intellectual property or for use of a platform, such as YouTube.

Henry Jenkins writes in Convergence Culture that

“American intellectual property law has been rewritten to reflect the demands of mass media producers–away from providing economic incentives for individual artists and toward protecting the enormous economic investments made in branded entertainment”

MONEY! MONEY!

Those who are part of participatory culture are often not seeking compensation in traditional ways, yet are not just doing it for the LOLs. Viviana Zelizer discusses the social meaning of money in her same titled book:

“Money [according to some theorists] destroys, necessarily replacing personal bonds with calculative instrumental ties, corrupting cultural meanings with materialistic concerns…. Observers of commercialization in Western countries have thought they saw devastating consequences of money’s irresistible spread: the inexorable homogenation and flattening of social ties.

Money may not be what fans are seeking — instead recognition, credit, etc — but what are likely at the bare minimum to be seeking the ability to continue to participate. And continue to strengthening social ties in multiple ways — to each other, to the work, and to creators/owners.

LESSIG! (done in Khan style)

Laurence Lessig’s recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy discusses our present situation, includes a lengthy discussion of the economics of two types of culture — commercial and sharing.

A commercial economy [is centered on] money or “price” [as] a central term of the ordinary, or normal exchange.

Of all the possible terms for exchange within a sharing economy, the single term that isn’t appropriate is money.

But Lessig discusses a combination between the commercial economy and the sharing economy — the hybrid economy:

The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.

If those within the sharing economy begin to think of themselves as tools of a commercial economy, they will be less willing to play. If those within a commercial economy begin to think of it as a sharing economy, that may reduce their focus on economic reward.

Much of Lessig’s discussion about hybrid economies is applicable to fan culture and other examples of participatory culture and user-generated content. Therefore, our presentation is about both the successes and failures of hybrid economies and about how in order to get something of value, some measure of control over property needs to be loosened. Commodifying the value added by user-generated content varies greatly depending on who or what is determining the value. culture.

Tiziana Terranova also discusses the role of moral economy that discusses “free labor” found in fan participation:

“Free labor is the moment where this knowledgeable consumption of culture is translated into productive activities that are pleasurably embraced and at the same time often shamelessly exploited….The fruit of collective cultural labor has been not simply appropriated, but voluntarily channeled and controversially structured within capitalist business practices.

Firefly/Serenity (we have this section blogged here)

Harry Potter (we have a longer version of this section here)

Recently, J.K. Rowling won a case preventing the print publication of the Lexicon, a non-licensed encyclopedia of the Harry Potter universe. While barely mentioned during the trial, this case is not just about one book, but concerns the entire Harry Potter fan community.

The Lexicon was created as a online encyclopedia with a large number of fans helping to make the entries accurate. When Vander Ark signed his book deal, completely ignored were the countless fans that contributed and made the website a success. So the lawsuit was fight between the author and the compiler/host of a fan-created work. Yet the fans who have contributed to the Lexicon get neither money nor recognition of their contribution.

The longest mention of fans during the trial was by the publisher:

Q… if you win this case, out of the money that you receive, you don’t plan to give any of it to fans who submitted their work, their time, to submitting information from Ms. Rowling’s book to Mr. Vander Ark’s website, is that right?

Q. You’re going to give back money to the fans, is that what you’re saying?
A. If the book is successful, there’s a lot of possibilities.

Later, the judge said that the issue of fan payment/contribution was irrelevant:

Whether or not the fans contributed … is a side issue.

J.K. Rowling has always been supportive of the fan community surrounding her works, interceding on behalf of fanworks (she is however against fanworks that use underage characters in illegal physical situations). This case has led to a rift in the Harry Potter fan community, with the Leaky Cauldron (the most popular Harry Potter news-site/message-board) cutting all ties to the Lexicon.

A recent New York Times article, Public Provides Giggles; Bloggers Get the Book Deal, discusses how user input to websites, such as I Can Has Cheezburger? (book sold over 100,000 copies), has led to website owners receiving compensation while those that created value receive nothing:

the latest frenzy is over books that take the lazy, Tom Sawyer approach to authorship. The creators come up with a goofy or witty idea, put it up on a simple platform like Twitter and Tumblr, and wait for contributors to provide all of the content. The authors put their energy into publicizing the sites and compiling the best material.

Nowhere mentioned in the article is whether contributors receive recognition or compensation.

Star Wars

Star Wars is often talked about as a positive example — after all, there is a highly active fan community and a fanfilm contest. However, at present, Lucasfilm only allows for and takes control over certain types of fanworks — and zealously goes after those that do not fit their standards, even if those works arguably could be considered to be fair use.

Both Henry Jenkins in Convergence Culture (2006) and Anne Elizabeth Moore in Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity (2007) quote the same Lucasfilm exec, who said in the New York Times in 2002:

“We’ve been very clear all along where we draw the line. We love our fans. We want them to have fun. But if in fact somebody is using our characters to create a story unto itself, that’s not in the spirit of what we think fandom is about. Fandom is about celebrating the story the way it is.”

Moore describes the control Lucasfilm expects over the fandom as

It is an idealized brand environment that prohibits any potential negative, critical, or neutral comment.
…The Lucasfilm IP strategy, therefore, might read something like this: imitation is the sincerest, and only allowable, form of flatterry. Yet in practice, this narrow definition of fandom, while encouraging freedoms of certain speech, actively discourages others …[and] even punishes them. The strategy begins to look like a legally enforced suspension of critical engagement.”

Lessig says

A careful reading of Lucasfilm’s terms of use show that in exchange for the right to remix Lucasfilm’s creativity, the remixer has to give up all rights to what he produces. In particular, the remixer grants to Lucasfilm the “exclusive right” to the remix — including any commercial rights — for free. To any content the remixer uploads to the site, he grants to Lucasfilm a perpetual non-exclusive right, again including commercial rights and again for free.

The remixer is allowed to work, but the product of his work is not his. Put in terms appropriately (for Hollywood) over the top: The remixer becomes the sharecropper of the digital age.

Lucas is of course free, subject to “fair use,” to do whatever he wants with his creative work. The law of copyright grants him an exclusive right to “derivatives”; a remix is plainly a derivative. And it’s true that no one is forcing anyone to make a remix for free.

Nine Inch Nails (we have a shorter version of this section here)

Conversely, the band Nine Inch Nails and the musician behind it, Trent Reznor, has in recent years spearheaded novel approaches to user generated content that allows a symbiotic/collaborative relationship with fans and their work. It closely represents both the fundamental mindset of Open Source developer communities (distributed ownership) as well as adopting a model very similar to to the curious copyright culture in Japan, anmoku no ryokai, that allows derivative manga to be sold alongside their corporate-owned source. This approach won’t work for every corporate owner/creator, and it’s certainly not the only one, but it’s at least one current example of a hybrid.

NIN’s fanbase have had a traditional unusually interactive relationship with each other and with the band, serving as self-selected ambassadors and archivists for both official releases of the band and NIN fanworks:

NIN Historian: started in 2002, a fan run website that has documented memorabilia from live NIN shows from the bands inception.

NIN Remixes.com: an archive of fan-created remixes of Nine Inch Nails songs, which allows indivuals to upload their own work, and existed before Trent Reznor allowed his post – Interscope work to be distributed under a Creative Commons license. Remix.nin.com , started two years ago and exists alongside ninremixes.com, the fan run site that has existed for over 5 years. Universal Music group halted the launch of the “official” site

Year Zero ARG: As part of the Alternate Reality Game that accompanied YZ, three of the tracks were made available on flash drives ata couple of NIN shows. When the tracks were leaked on the internet, RIAA cracked down on the fans leaked tracks and remixes, even though the ARG campaign was officially condoned by Universal Music Group.

From Billboard:

“An RIAA representative confirms this, a move that boggles the minds of many. “These f*cking idiots are going after a campaign that the label signed off on,” the source says.”

Since the Creative Commons blog has already put together links:

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

The post (mirrored on Laurence Lessig) has an explanation for this:

So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked. The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule…

In The Economic Structure of Intellectual Property Law Posner and Landes state that

“When several artists contribute to creating an integrated expressive work, it is efficient to vest copyright in one person [or company] and who better than the initiator and coordinator of the project?”

Posner and Landes continue

… [I]f a work is offered as a substitute for another work, then it takes away sales from the copied work. If the work is offered as criticism, it may take away sales too, but not by virtue of the copying– by virtue of the criticism, which should be permitted.”

The Ghosts example is certainly an argument against that statement. Recently, NIN went a step further in extending creative control to fans by “discovering” 400GB of high definition concert video footage online and inviting fans to create their own video projects.

There’s a bit of history behind this: after learning that a home video release of the most recent tour NIN was not in the cards (long story behind that, but at least according to Reznor, it was due in part to his former record label roadblocking him), some disappointed fans took it upon themselves to organize an online community to create a fan-produced video of the last show of the tour. From fan website http://thisoneisonus.org:

On 5th May, 2008, Nine Inch Nails released their latest album, The Slip, free online, as a gift to their fans. Or as Trent put it: “This one’s on me”.

On December 13th, 2008, dozens of Nine Inch Nails fans recorded the last show in the Lights In The Sky tour at Planet Hollywood, Las Vegas:

By working together, we aim to create a DVD to document this show that will be released free online, and possibly as a not-for-profit physical release. This one, is on us. Our time. Our effort. Our present to all NIN fans.

This was all with the indirect “blessing” of Reznor, who even before the video leak, loosened up the video security at the the show, allowing fans to record their own footage. Now to be sure, artists condoning and supporting fan video isn’t entirely a new concept either: back in ‘04, the Beastie Boys gave video cameras to fans and released an entire feature concert film of fan-shot video. And long before they became Public Enemy number 1 to grassroots fan activity, Metallica released a video, Cliff ‘em All, that featured some fan-made video record during their early years. But providing what is essentially a DVD’s worth of video footage for fans to play with is notable: it’s a gesture that embraces the open source/Creative Commons approach to fan-works and fair use that presumes a kind of perceived collective ownership of property. (A court would argue whether the derivative works of remixes and fan videos belong to Reznor or the fans, but there’s cultural perception within that particular community that the footage is owned collectively the fan community at large.)

Each party receives compensation from this sharing economy: NIN gets to leverage the enthusiasm of fans, who are willing to invest time and money to serve as free marketing ambassadors for the band, while fans recieve a product to consume free-of-charge.

Conclusion

We’re at a point now where more content/owners creators depending on social media/viral and word of mouth marketing to extend their reach and fans using technology and media tools to create increasingly sophisticated derivative works that conflate the role of media producer/consumer/owner/ambassador. Now, we’re seeing those worlds bump into each other. Current copyright law and culture hasn’t yet caught up to these advances in technology and culture. Pat Aufderheide mentioned at her presentation at MIT6 about a 20th century mindset to fair use being carried over into 21st century practice, and I think that’s what we are seeing here.There’s room here for scholars and practitioners to identify these “best (and worst) practices” of this hybrid economy model to replicate and to guide policy decisions, with more companies at least exploring the possibilities of adopting an approach that allows for a safe haven for fans/brand supporters/etc. to create content that would benefits all parties, and also allow users to edcate themselves on their own rights and responsibilities as media producers in this public sphere.

Laurence Lessig says that:

“there is a deep divide between those who believe that obsessive control is the hybrid’s path to profit … It is for the privilege of getting to remix … that these new creators are told they must waive any rights of their own. They should be happy with whatever they get (especially as most of them are probably “pirates” anyway).

A decade from now, [a controlling] Vaderesque [approach to remix culture] will look as silly as the advice lawyers gave the recording industry a decade ago. New entrants, not as obsessed with total control, will generate radically more successful remix markets. The people who spend hundreds of hours creating this new work will flock to places and companies where their integrity as creators is respected. As every revolution in democratizing technologies since the beginning of time has demonstrated, victory goes to those who embrace with respect the new creators….Businesses will have to think carefully about which terms will excite the masses to work for them for free. Competition will help define these terms. But if one more lawyer protected from the market may be permitted a prediction, I suggest sharecropping will not survive long as a successful strategy for the remixer.