DRM and Copyright’s fuzzy bounds

Last week, Wendy Seltzer (Brooklyn Law) and Fritz Attaway (MPAA) debate DRM at the WSJ: ‘DRM’ Protects Downloads, But Does It Stifle Innovation?. The difference in opinions is about how end users relate to copyrightable works. The strong copyright/pro-DRM view is that once is a work is fixed, it is inviolably fixed in that particular arrangement unless the copyright owner decides to offer a different version. The argument against DRM is that copyright law allows individuals to use a particular copy of a work in any manner they want– such as cutting up a book and stapling the pages together out of order– but DRM makes it impossible to engage in these uses that are permissible under copyright.
The copyright maximalists are concerned about indiscriminate redistribution. The anti-copyright advocates are concerned with restrictions on lawful use. It is difficult to distinguish between the uses necessary for each end result, so to prevent indiscriminate redistribution constricts the ability to use lawfully acquired material. But the digital formats that allow users to remix and repurpose lawfully acquired copies in non-infringing manners also allow for indiscriminate redistribution.
A technological system can restrict the ability to make copies. The law can be fuzzier, because the boundaries between infringement, fair use, and non-infringing use are not clearly delineated– context is crucial.

Fair Use Network

The Free Expression Policy Project at NYU’s Brennan Center launched the: Fair Use Network: “The Fair Use Network was created because of the many questions that artists, writers, and others have about ‘IP’ issues. Whether you are trying to understand your own copyright or trademark rights, or are a ‘user’ of materials created by others, the information here will help you understand the system — and especially its free-expression safeguards.”

Permissions

At the NYU Comedies of Fair Use conference, Susan Bielstein discussed some of the issues that make it difficult for publishers to obtain copyright clearances: Comedies of Fair Use: The Permissions Maze. Her book, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property is now available from the University of Chicago press. Here’s the suggested blurb the publisher emailed:

Susan M. Bielstein distills decades of experience as an editor of illustrated books for a guide to navigating the treacherous waters of copyright, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property. She gives frank advice on how to determine whether an artwork is copyrighted, how to procure a high-quality reproduction, how to use “fair use” to your advantage, and many other issues. Lawrence Lessig calls it “an extraordinarily compelling account of a system gone mad.

David Pogue relays a story of a permissions problem: a store refused to print digital photographs because the photographs look “too professional”: Picture This: Common Sense: “‘She told me that because of copyright concerns, Target reserves the right not to sell any picture that appears to be professional. She said, ‘Anyone can just download any picture they want, and we’d be liable. I’m sorry, we will not sell you the prints.’”

Thoughts on Fair Use

Because of technology, copyright today affects many more people than ever before. Copyright is something that only people with access to copying and distribution equipment have to worry about. but even a $29 cell phone can be used to make and distribute copies worldwide. A $1000 computer hooked up to the internet is an amazingly efficient and powerful copying and distribution machine with worldwide reach. Copyright law has gone from being something esoteric that affects publishers and the mass media to being something that affects the average citizen on a daily basis. It affects the way we not only create culture but engage in normal uses of cultural items and personal records.
Fair use is not a business model. It is a limited affirmative defense to a charge of copyright infringement. As such, publishers seek to avoid having to rely on fair use. The result is that fair use in practice exists far within the bounds of the law of fair use. It is much cheaper to obtain a license than to go to trial to defend a copyright infringement lawsuit.
As a result of this calculus, there is a paucity of fair use decisions (especially appellate decisions). Because the actual structure of fair use is entirely a judge-made common law, the fewer decisions available, the less case law support exists for advocating particular interpretations of fair use. What in-house counsel wants to make their fair use case into an expensive test case?
This creates a feedback loop, where the legal departments of publishers are exceptionally cautious about matters of fair use– with good reason– and will require creators to obtain licenses before publishing any work that incorporates quotes or snippets of other works.
Among publishers, there exists a permission-based culture where even clear de minimis or fair uses are licensed as a matter of basic risk aversion and sound business practice. This is especially easy because publishers do not bear the cost of obtaining licenses. In the record industry, sample clearances are a recoupable expense and are ultimately borne by the artist, not the label. In publishing, authors bear the cost of obtaining clearances.
In addition, the publisher gets more revenue for each of these granted licenses. While not necessarily a tremendous amount of revenue, it might be enough to have a measurable impact on revenues.
A fascinating empirical study would look at the cost of the permission-based culture. It would calculate the cost of licenses obtained by publishing houses, record labels and/or film studios, compare it against the revenues obtained from granting similar licenses and then examine which of those uses might be considered a fair or de minimis use. (If anyone wants to fund this study, drop me a line!)
The Stanford Copyright & Fair Use Center has an excellent brief summary of fair use cases. One theme that recurred over the course of the conference was the need to fully litigate more fair use cases. Unfortunately, there is little business interest to litigate these cases. Since it is a matter of public interest and First Amendment free speech interests, but not in anyone’s business interests, this is an area where even more public interest non-profit legal services organization would serve the public interest. The Stanford Fair Use Project (which is seeking an executive director) and the Brennan Center Free Expression Policy Project are examples of this kind of public interest organization. But with limited resources, they can only litigate a small number of important test cases each year.
A legal services organization could offer creators and copyright owners low-cost, heavily subsidized counsel in litigating a greater volume of fair use cases…

[Comedies of Fair Use] What is to be done?

Here are rough notes from the Comedies of Fair Use at NYU panel “What Is To Be Done?” (4/30) with Judge Kozinski, Pat Aufderhide, Susan Bielstein, Carrie McLaren, Lawrence Weschler (moderator)
Pat Aufderhide
Although there is a lot of confusion, there are a lot of healthy practices.
Carrie McLaren
Solutions sound scary because one solution has to be all-encompassing. Possible to get things done on a smaller scale, both within the system and outside the system.
Negative publicity is an incredibly powerful tool.
Receiving a C&D can be used as PR.
Significant power of distribution networks
Susan Bielstein
-Book includes the cost of each clearance in caption, this may end up that license contracts include non-disclosure as to price.
-We need a central repository of copyright misuse [again, link to mazzone]
-We need education from attorneys on publishing houses rights& permissions staff [here’s another non-profit type idea]
we will make a greater commons when we assert the commons. We will have more fair use and free use when we hold these truths to be self-evidence. This has more to do with changing norms than changing the law.
Kozinski
There are not enough fair use cases. Kozinski can probably name 3/4 off the top of his head.
There are lots of cases that get litigated in the first Amendment area, e.g. Nazis in Skokie.
Too often, these cases arise in a business situation, and you need to make a business decision.
Authors/publishers need to think of themselves more as a public trust and there’s something to be said for not backing down.
sometimes you litigate not because it’s the right business thing to do, but it’s the right thing to do.
these are not just artistic issues, there is a serious undertone of political discourse. Almost all art has a political undertone and everything having to do with expression has a serious political undertone.
What do you remember from 1984– where’s the beef– which was based on a tm.
Trademarks are a more important area in terms of political discourse than (c) for two reasons
1. While on rare occasions books may be widely read commercials get pushed at us with a high-powered hose. [they’re in the public consciousness]
Example: The word Olympics is owned by the USOC. The USOC gave permission to the Special Olympics, dog Olympics, but not the gay olympics.
-If you take words out of the political discourse, you hurt the discourse.
-Mattel v. MCA — another attempt to pull a word out of the discourse for the purpose of avoiding a message that has definite political undertone
Weschler: To what extent do people who keep sending C&D letters but don’t sue, does that set up a process where those letters can be safely ignored?
Kozinski: There are many reasons why rightsholders fail to sue. They are very well aware of the publicity risks of suing.
Audience member: Does undue diligence – failure to protect copyrights – have legal standing?
Kozinski: getting an injunction is an equitable remedy. With equity, laches and estoppel come into play.
Bielstein: content providers often don’t want to go to court because they don’t want more fair use decisions. They don’t want a lot of case law that takes the law towards the defendant.
FEPP is offering pro bono services for recipients of C&D
Marjorie heinz from FEPP: DMCA takedown notices are more effective than C&D letters.
Best practices policies attempt to reduce fair use to numbers. It’s not the outer boundary– it’s relatively conservative.
Best practices for documentary filmmakers is what do (c) owners and practioners deblieve to be fair.
Kozinski:
Common law system flexibility is good for free speech. A system that looks at set rules– number of words– [technical] must be avoided. Chaos has its own benefits, chaos has its own flexibility and chaos allows you to develop quickly in a world that is changing.
Some changes to consider:
Do away with injunctions in most cases where the issue is transformative use. Any kind of use that adds value, changes value, essentially becomes a derivative work, injunctions should be highly disfavored. Exempt entirely anything non-commercial in nature from injunction. Try to avoid making kids feel guilty about sampling, so long as they are not making money on it.
Examples of problem of unavailability/out of print problem. Would be glad to buy it and pay for it if it was available. But here, infringement keeps cultural property in circulation.
Those who assert rights needs to be more assertive. lawyers represent pro bono the cases of those who can’t afford lawyers. This is another area of civil liberties and the civil liberties lawyers ought to understand it and it affects us more than whether the Nazis can march in the streets of Skokie. This affects most people’s rights and ought to be viewed more as a civil liberties issue.
We’re talking about expression, the very stuff which the First Amendment is made.

[Comedies of Fair Use] The Permissions Maze

Susan Bielstein (U of Chicago Press):
As a pubsliher/editor she has come to develop a somewhat inverted view of fair use
Authors trying to insinuate themselves into the world of high crime– little problems writ large– once authors come to understand that fair use is not an inalienable right, but a legal defense. The doctrine ultimately gets worked out in a court of law, not the editor’s office.
1. The cost of doing battle is hardly worth it for scholarly editors/authors– the amount of sales/$$ is peanuts. It’s never worth it for the used copyright holders to go to court. What the editors do get are lots of cease & desist letters.
Publishers want to avoid legal battles if at all possible– even silly ones that they’d easily win.
2. With the rampant commidifcation of culture, it is now assumed that something that is anything must be worth something. Everything is IP. So, the members of the Fourth and a half estate have become incredibly jumpy. The reason they are so jumpy is that (c) claimants come after publishers, not authors. So publishers are complicit in stretching a system of legal interests into a system of legal overreach.
3. A system of balance is disappearing– it doesn’t make for good comedy or news. But there’s a need to balance the rights of property owners and the rights of users.
Don’t expect publishers to take the lead. The authors need to– come up with policies to support fair use and defend that position. Then scholars may have their day in court– they’d probably win.
Geoff Dyer:
Kind of hoped that Hemmingway estate would come after him for “sampling” from Hemmingway, e.g:
“it was raining hard outside”
“He took a big gulp of coffee.”
Are they identifiably Hemmingway? [Beyond de minimis and protectable?]
Authors have to bear the cost of clearances. (in abook of 120 images, attempted to do a fixed rate at $100/image.) But that didn’t work, so there would be a need to negotiate with 120 different institutions/pphotographers. Some were very helpful. Some people, their demands were so excessive.
The last panel discussed the difference between academic and commercial use. As someone published by a commercial, for-profit company, but whose books have never made publishers any money, but still charged the higher (for-profit) rates.
Suppressing the desire to whine about the process. Except for his experience with the Diane Arbus estate. The estate asked to see what he wrote. Responded denying permission because of “factual errors”– or interpretations that the setate simply didn’t like.
Allan Adler:
The (c) act uses research, scholarly and educational uses as different uses. So, individuals are forced to figure out what the difference is between those uses.
When we talk about not-for-profit entities, can we really include places like NYU that charges undergrads $40k for tuition? We need to realize that there are for-profit entities that can engage in not-for-profit activities and not-for-profit entities that engage in for profit activities.
There are no per se fair uses, but the courts and Congress require there is a situational application for the 4 §107 fair use factors. Aren’t there any rules of thumb, a bright-line way of determining what is fair use? Nope. There are likelihoods, but no certainties.
Harper & Row v. Nation Enters., 471 U.S. 539 (1985)– the most newsworthy aspects of the work and the commercial value already realized in serliazation rights.
Think of it in terms of the Golden Rule– ask yourself as your are about to make a fair use, would you feel if that use should be compensated are require permission. If people are trying to act reasonably, that’s not such a bad way of thinking of it.
What about that situation where you think you need permission, but don’t know how to go about finding it. You have a reason to believe the work may still be under copyright, but it might not have been renewed. You may not know if those people did the renewal or if there was a reversion of rights. It’s not the works that have been orphaned, but the uses of those works that have been orphans.
Earlier this year, the Copyright Office released a report on the orphan works problem.
Publishers sits at the table not just as owners of copyrighted works, but as users of copyrighted works.
Problem of embedded works– attempting to license an electronic version of a chapter of a textbook that includes third-party photos/charts that are licensed only for the print version. So, how does a school get these rights if the publisher can’t grant the rights?
Role of Fair Use norms. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). If you recast it, then that use can be considered transformative. If it is a mere repackaging or duplication, that simply supercedes the original work.
Also think about the relationship between contract and copyright. Contracts are a set of rules that only apply to the parties who agree to have their actions bound by the contract. one can easily contract away one’s fair use rights. in a digital context, a license often goes up against the black latter law of copyright.
James Boyle:
“I am the person who stands between you and lunch.… Let me lower your expectations before I even begin. ”
Law here is being pressed into service to deal with a set of concerns for artists which have little to do with the law. Almost all who spoke talked about law as anything other than a second-best situation. (c) law is based on a utilitarian view of production of works and is hostile to the moral rights of authors and creators.
Law is being used to address a series of deep cultural divides that it may be unable to overcome, or even the ability to state these issues. Fair use isn’t going to solve those issues for you, neither will copyright law as a whole.
Tradition of copyright law is very different from the tradition in the French tradition (droit de auteur). There are many countries on the WWW.
If the law could reach decisions quickly and costlessly, it would be very different. Private parties are really setting the bounds of the debate and these parties may not actually be the parties involved. In the film world– it’s the gatekeepers who stand between the filmmaker and distribution who just clear everything and won’t let the filmmaker claim fair use. [The actual level of fair use in action is less than the bounds of the law.] For example– Boyle was thwarted from photocopying his own article for his class by the BU copy room for lack of a written license.
One of the most important factors: is there a market for the use? An assertion of control over no matter how tiny– can create a market for licensing a small fragment. The difficult thing is, the most prudent thing to do is say that it is fair use. Feedback loop of creating a market for everything. That spiral is largely outside the control of courts and Congress.
You might imagine that copyright law has no purpose other than full employment for lawyers, but it does have a purpose. Copyright law is being given a bad name by its ridiculous hypertrophy. Copyright law has morphed in all kinds of ways that are stated in the copyright Clause or the intent. Now fair use, which was meant to be a help on certain problems, but now fair use is stuck trying to step in as a check for overreaching (c) owners.
The ideas within fair use are fundamentally sound. The way the law exists as a philosophy is very good, but the way that Congress and users are extending it. We need to reclaim copyright law– to take it away from something that it used to be (a contract that affected industry and stakeholders– drafted by the reps of the various industries.) It’s not a system that works, either on the books or in practice. Today, copyright law affects more people at more times. Previously, you needed access to a printing press to set off copyright. Today we make copies all the time as part of our daily, everyday work. so more people than just the major stakeholders are affected, and so agreements between the industries is not enough.
Sometimes where we have situations where the First Amendment comes into conflict with Copyright. For example, a case where Mein Kampf was published in the US in an abridged English translation that omitted some of the worst passages. Senator Cranston published a translation of the entire German work– it was the whole thing, and there was a strong interest showing that it was fair use.
We’ve put a lot of these issues in the context of freedom of expression. Most other countries don’t have freedom of expression.
Lawrence Lessig:
What method might we adopt for resolving what we all see as a real problem?
One way might be to look at the subjective feelings at the people involved. That way just can’t make sense of the way the system works now. sometimes we’re really attentive to the subjective perspectives, and sometimes we aren’t.
We should think about what the consequences for creativity of a particular regime. The Woods case radically changed the way that film gets made. Lawyers now create massive books of all references in the film to get E&O insurance. If you’re George Lucas, so what? But if you’re a documentary filmmaker or someone attempting to do cheap distribution, they can’t afford to do all these clearances and can’t distribute without E&O insurance.
We need to think about what the systemic consequences of a particular system of protecting rights.

[Comedies of Fair Use] Vaidhyanathan, Adler and Hansen

Siva Vaidhyanathan
1. Copyright touches more, but protects less than ever before. (see e.g. pirated DVDs on Canal St.)
2. How night we insure how (c) can protect investment and still protect speech
3. To what extent can we rely on fair use. Is it the best vehicle for protecting speech when it’s really only an american thing.
Allan Adler (Assoc. of American Publishers)
Overclaiming. There’s been a lot of overclaiming about the difficulties that fair use poses to culture and overclaiming about the problems of the public domain.
In the world of Washington, (c) is synonymous with Hollywood. In terms of political baggage, it carries a lot of negative connotations that makes DC people uncomfortable and spills over into their view of copyright. Publishers are thought of a backwater industry that hasn’t adopted new technology and not as the original reason for copyright. Forget that publishing is a promoter of speech values.
In DC, we usually think of copyright only in terms of the film (and occasionally record) industry. (c) protects the value of original creative expression. Fair use isn’t merely protecting the convenience of someone who wants to put his cd on his ipod.
Fair use per se? If all educational uses are free, what happens to the textbook market? Right of access to a particular copy in the format of choice? Where does that come from– Congress has never said that and the courts have explicitly rejected that (Universal v. MP3?) These are interpretations that have no foundation in law, public policy or original intent of copyright law.
Now we hear about fair use in Congressional hearings about making a copy of a new CD to provide to the 20 people on the x-mas list. They’re not competing with the seller and introducing it into the market– but fair use was never about that, either.
Lessig talked about a lot of heavy words– consumer, culture. Publishers rely a great deal on fair use.
Lots of talk about the problems with DMCA, but the DVD wouldn’t exist if not for the DMCA. We have this flood of culture because of all the economic incentives. There is a torrent of creativity because of all the economic value there.
US can no longer support its economy solely on manufacturing. Most of our jobs are the direct result of IP law. NYC is the capital of book publishing. We’re in a school of journalism. How can you get a job as a journalist without the protection of copyright?
If some (c) owners go too far in protectionism, it’s not that much of a big deal.
The anti-copyright movements haven’t taken off, because most Americans really only care about consuming and most people are satisfied by what the marketplace offers. The marketplace allows consumers to make choices. If you ask the gov to step in an regulate, you’re not going to like the results.
Should Congress rewrite fair use to make it more specific, and all said no. Some because they want to rely on the flexibility to be able to invoke fair use perhaps in some cases where it didn’t fit the original intent of the drafters; others because they don’t want to grant away specific rights.
Ultimately, fair use is not going to change too much. Our perceptions of it may evolve, but there is no momentum DC to rewrite the law. What we need to start doing is look at these differently to recognize that there is a tremendous diversity of interests involved here. There may be no definite resolution, but the flexible fair use concept seems to work well today (And this flexibility keeps DC lobbyists in business ;)). This will continue to be rewritten as technology advances, while Congress and the courts lag behind the tech. Gap between original intent of the law and the way it works in practice may not be bad.
Hugh Hansen (Fordham Law)
There’s really nothing going on in fair use on the international level. People who want more access would love to have it. In the civil law countries, rights are written affirmatively into the law– no flexibility.
law here is flexible and driven by judges. This is much more protective of free speech than the code countries.
The controlling mechanism of copyright is in courts, not in COngress.
The law hasn’t changed as much as the behaviors enabled by technology. New technology reallocates the transaction costs. Technology doesn’t sit on one side of this debate.
The only people with worse PR than the record industry is the Taliban. We have music publishers who take pride in the fact that they won’t license for the internet. On the other side, Richard Stallman jumps up at a conference and says that everything should be copied. It’s very easy to use anecdotes to get things on your side. Shouldn’t the martin Luther King estate be allowed to refuse to license to skinheads?
Just grow up and deal with it. Some industries (particularly documentary films) need protection, but generally, the small creators sitting in a small lifeboat in a digital sea don’t really get affected by the law [until they get sued, that is]. But the market generally works pretty well.
What we tend to do is polarize that all good is on one side, but that’s not really the case. The trouble with smart people– particularly economists– is that they often don’t have any judgment. Publishers are generally adverse to litigation because it’s really expensive.
Access to information is great. Rejoice in it. There may be problems, but they are not so dramatic that we have to change the whole system.
Vaidhyanathan (to Lessig): As an academic, you’ve stated that fair use is a distraction from thinking about how (c) works in the perfect world, but as an advocate, you assert fair use as a defense in the Google Library case. Can you envision a better regime for user rights? In ten words.
Lessig: Is there a tension? my view is that the system is not functioning well, because we are all asking the wrong questions. The academics should look at the bigger picture. But as advocates, we use the tools we ahve available. Those who say that there is no problem out there don’t get all the prospective cases that we do at the Stanford clinic.
The practical problem is that the middlemen in the process realize that lawyers are expensive and are rational to take a conservative, risk-averse position, so the actual bounds of fair use in practice are less than the extent in the law.
Hugh talked about the disconnect between non-commercial and commercial uses. Lessig wants the non-commercial uses to be legal. That would change the way we can teach. It’s legal to create something in a classroom that mixes the works of Shakespeare and Hemmingway, but its copyright infringement to create something in the same classroom that mixes the works of George Lucas and Alfred Hitchcock. We should encourage this creativity instead of saying that its criminal, but it won’t be prosecuted.
Vaidhyanathan (to Adler): Is there an underappreciation of fair use by your clients (the publishers)? Many authors quote other works, but it’s their own publishers who insist on expensive clearances (borne by the author) instead of relying on fair use?
Adler: Publishing industry is tremendously risk averse. Letters are often written not because of what the publisher thinks, but because of what the authors think. Some authors don’t want their works to be exerpted and taken out of context.
Maybe the law would be better if people tried to use it more and don’t worry so much about getting sued. Does a film studio or record label really need the publicity that would result from suing a sixth grade class. There are very few federal court decisions on fair use.
Vaidhyanathan: but there are.
Adler: There may be lawsuits or demand letters, but not decisions. There are very few decission. If you stand up in court to defend fair use, that’s how revolutionize the law. There’s been no champion for fair use in the court.
Vaidhyanathan: Should we have moral rights protection here (ala King estate example)? If we had it here, how would that affect fair use?
Hansen: It’s generally the heirs [link to Miro/Google] who don’t have to work as artists again who assert moral rights.
Publishers are very conservative. Lessig had the problem when dealing with his publisher. His publisher told him that he couldn’t quote as much of an article by Courtney Love as he wanted to, but he (the He
The reality is there is a middleman who decides what right you’ll stand up for– it’s a sound business decision.
Audience Question: Should we establish a statutory rate for fair use quoting? It works well for record labels when dealing with music publishers for recording cover songs. (§115)
Adler: You could go in that direction if you want to let the trains run on time, but then you’re taking the value off the market.When has Congress ever made a right decision about the market?
Siva: Some works will be undervalued with a flat price and others will be overvalued. A Paul Simon song is undervalued when its at the same rate as a song by Siva’s cousin.
Adler: THe public places different values on works by different artists. why should the government come in and say that all works have the same value per content.
Lessig: It’s ridiculous that you can record a cover song because the record industry has said that it’s central to the vibrant market. But on the other side, taking a sample from a recording is prohibited by the law [6th Cir.] Why does the government intervention that promotes the most creativity?
Hansen: When parties have been unreasonable, they look to the government to step in and fix the problem. ASCAP v. Girl Scouts. Maybe if (c) owners remain unreasonable, then perhaps we do need government intervention.
Audience Question: Authors quote pop songs often as epigraphs of a novel. It’s completely normal for an editorial to tell the author to seek a copyright clearance. Do you think that this is an area where the author should stand up to be a champion for fair use? [Sounds like someone is looking for free legal advice…]
Adler: If the industry colludes to do this all together, that’s an anti-trust problem. But if each publisher does this, it would do something. The GC might say, I have better things to do than bother with this.

[Comedies of Fair Use] Lawrence Lessig

It’s hard to take notes about Lessig’s presentation because he actually uses his slides well– to add context and not merely to duplicate the text of his talk. But this is a blog– where it’s just as good to do something quickly as it is to do it well:
Testifying before Congress, JP Sousa lamented the development of mechanical music reproduction, which would kill the culture of sitting around and singing popular and traditional songs.
With analog works, standard, everyday uses by citizens are unregulated (read, etc.). A small sliver of uses that involve copes
1. regulated uses (distributing mass copies)
2. fair uses (quoting a book in a review)
3. free uses (reading, loaning, the everyday uses by individual citizens)
New digital/internet culture
Two very different internet cultures evolving.
1. Read only culture (RO)
-Extraordinary empowered by these techs to buy and consume culture produced elsewhere. eg: Apple iTunes, pay-per-read ebooks.
-Offers perfect control over how people consumer– the couch potato culture
2. The read-write/internet culture (RW)
-blogger, flickr, 6apart, myspace
-consumers don’t just consumer, but create and share creativity.
Examples:
-anime music videos (redits anime movies to create music videos. I know what we’re doing for our next video…)
-grey album, bush-blair, bush:hard work. (link to this)
It is a part of literacy now–
57% of teenagers created and shared “content” themselves and share it on hte internet. How they speak and think.
Anyone with a $1500 computer can do this. [just so long as they have 1500 to get a computer.]
It’s the same kind of speech people engaged in before, just using different tech to facilitiate this kind of speech. Differently empowered speech.
Freedom to speak.
Copyright law on the internet serves to promote the vision of the read-only culture on the internet. In the analog world, (c) owners couldn’t control these normal everyday uses.
If the law controls copies, in the digital world, those normal uses create copies, and so the amount of uses that are regulated by (c) law increase to include most uses.
DRM tech perfects control of how culture gets consumed– promotes the RO culture.
The RW culture conflicts with (c) law.
This culture makes use of copies as part of the normal (non distributive) uses
But the law presumptively regulates copies, so uses are presumptively illegal and permission is not coming.
At a fair use conference, Lessig comes out against fair use.
World with fair use is better than one without.
But, fair use shifts the debate over the important questions about how culture gets regulated.
Shifts attention away from free use.
In a world where every use is a copy, the free uses because presumptively regulated.
So then, why do we have to justify any freedom to use this.
It’s a very bad thing that the law regulates as broadly and presumptively as it does.
Quoting Prof. Litman: in the digital world, (c) law touches everyone and everything.
Discussion of fair use obscures the fundamental question: “why regulate at all?”
The second problem with fair use is that it ignores the costs.
Fair use is expensive. 4 factor balancing test is not too easy. There are no clear simple rules in fair use.
This is law written for lawyers– complex, uncertain. It’s harmless where it’s big companies that can afford (good for lawyers). When applied just by lawyers, it is decided rationally.
But it’s not just lawyers in court anymore. It’s any idiot with a computer.
Lawyers kill markets for creativity because of the uncertainty to the process.
Difficulty of acquiring rights to uses makes it difficult. e.g. films at Sundance needing to clear music rights. By leaving uncertainty, it drives away creativity (through risk-aversion) and makes it difficult (if not impossible) to sell marginally commercial (non-mass market) creative works.
See Patry & Posner- Fair Use and Statutory Reform in the Wake of Eldred
Incentives for (c) owners to overclaim their rights and the costs to creativity– not only the $$, but also prevents release of works by risk-averse creators.
We tend to focus on the $$ cost and not the threats to free speech.
Lessig feels blue.
What solution?
System of fair use is ridiculous for regulating this kind of speech
But we live in a culture where to question the foundation of IP law is to be called a communist– IP McCarthyism. Anything other than incremental change is a non-started in DC
Some ideas to mitigate the problem:
Documentary Filmmakers’ Statement of Best Practices in Fair Use (previous reference)
Stanford CIS Fair Use Project
Free Speech Insurance Cooperative and “fair use” insurance liable claims.
What we really need is some way of overcoming the insanity of these ways of regulating access to speech.
(c) law is necessary, but it shouldn’t extend beyond what is necessary (and threates free speech values)
We need a clear line (an affirmative fair use carve out) and limit the speech regulation to what is necessary and leaving the rest to be free.
The one thing Lessig agrees with Jack Valenti on is that the cost of the current copyright law is the creation of a generation of criminals. The morality expressed in the use of speech by children in a way that is against the law. Producing a generation of kids look to the law and see the law as an “ass.” And avoid the law and disengage from the idea that the law matters. There is great harm produced by this attitude towards the foundational rule of law in this country. [The broken windows theory of copyright.]

IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 2/2)

Last week, the House Committee on Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection held hearings on Digital Content and Enabling Technology: Satisfying the 21st Century Consumer. This is the second half of the podcast about these hearings, focusing in on fair use, DRM/TPM and anti-circumvention.
IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 2/2) (24:14, 22MB MP3).
Related:
Freedom to Tinker: Bernard Lang Reports on the Proposed French DRM Law
Open Media Commons
Eliot Van Buskirk, Wired News: Reasons to Love Open Source DRM
Timothy B. Lee, Cato Institute: Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act
David Pogue, NY Times: review of Slingbox
Consumer Electronics Assoc: CEA Praises Digital Technology Hearing; Urges Congress to Resist Content Industry Pleas for Technology Mandates; Increased U.S. Jobs and Employment Thanks to Tech Innovation
Broadcasting & Cable: Alternate TV Takes the Hill
Previously: IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 1)