Do First, Ask Later: Copyright, Norms and Expectations
by Alison Meier, Kate Smith, Joan Ekaterin, and Jess Hemerly
Do First, Ask Later: Remix Culture and the “Gray Area”
Web 2.0 culture is driven by community-created content, information sharing, and yes, copyright infringement. Blogs repost photos from newspapers, magazines, and other blog posts, often with attribution but rarely with permission. YouTube is overflowing with unlicensed television clips and videos with unauthorized background music; some of these uses are infringing and are others within the scope of fair use (e.g., Lenz v. Universal, which we’ll read later this semester). While some Web 2.0 use has been found infringing by courts, like music file sharing (see A&M v. Napster), most falls in uncharted legal territory. Users creating content often takes the approach of do first, ask later.
Remix culture falls within a gray area of copyright law. Mashups take video clips or music from different sources and recombine them to create a new product, such as parody movie trailers and fan-made music videos. Lee’s discussion of this trend in “Warming Up to User-Generated Content” (long but interesting supplementary reading for today’s class) suggests that many of these uses likely fall outside of fair use. Although fair use allows transformative use, copyright law explicitly protects derivative works (17 USC § 106). Lee notes that “how one walks the line between fair transformative use and infringing transformation in a derivative work is harrowing” (p. 1480). So far, remix culture has survived because its practices have not yet been addressed in court. This does not mean, however, courts will necessarily rule in favor of copyright owners; it simply means that there is not legal precedent.
Like remix culture, the Google Book Search project participated in the do first, ask later approach. They were sued for copyright infringement because they scanned millions of in-copyright books without permission from the rights owners. While the judge has yet to give a final ruling on the case, privacy issues and author settlement terms are holding up the ruling, not the question of legality. As Jonathan Band notes in “The Google Library Project: Both Sides of the Story,” this case is particularly important to the future of copyright law because it reverses the usual order of the user asking the copyright holder for permission before using material: “[T]he entire dispute between the owners and Google boils down to who should make the first move: should Google have to ask permission before it scans? Or should the owner have to tell Google that it does not want the work scanned?” (p. 3). While the Google Books ruling will probably not create legal precedence for remix culture’s use of copyright material, the fundamental attitude of using copyrighted material before asking—or even thinking about asking—pervades in both situations.
Majority practice in remix culture seems to indicate what people (if not the copyright owners) believe is and is not permissible. In fact, Lee suggests that popular use will have a significant impact on how the court applies copyright law when cases are brought to court. He argues that “informal” copyright practices (unlicensed use not explicitly outlined in prohibited in statutes have been influential in shifting copyright law in the past. He uses the example of the Supreme Court deciding that recording television on VHS tapes was lawful explaining that millions of people were already practicing this (Lee, p. 1484). Sony v. Universal—the Betamax case—established a precedent for “time-shifting” as a fair use. Likewise, remix culture maybe able to influence how the legal precedent is established.
Remix culture is not just online either. Last month, a 17-year-old in Berlin published a novel called “Axolotl Roadkill” where a character states “Berlin is here to mix everything with everything.” That sentence as well as whole pages were essentially lifted from another novel without attribution. When accused of plagiarism, the teenage author denied the accusation claiming, “There’s no such thing as originality anyway, just authenticity.”
DRM: Balancing Control and Expectations
In an attempt to control the flow and use of content, content producers and distributors adopted digital rights management (DRM) technology. But these measures don’t just interfere remix culture. According to Mulligan et. al., in order to jive with user expectations of personal use, DRM functions should provide “portability, excerpting, and limited relationship between users and copyright holders” (p.77). However, many systems and licenses interfere with these expectations. For example, a license or technological measure telling me that music I’ve bought or acquired during the term of a subscription is not going to alter my emotional and personal connection to a collection of music that I have harvested and curated and is, for all intents and purposes, “mine.” DRM that limits my ability to use my collection my way feels like a violation of my relationship with creative work.
It is to be expected that, in the face of copying and online exchange, copyright owners would want to maintain control over their creative, copyrighted work in order for that content to remain a commodity. However, a balance must be found between control within the law and heavy-handed control that restricts expected personal use. The question becomes: will users shift their expectations to accommodate the will of copyright holders or will users reject DRM measures that prevent consumers from using things the way they have come to expect?
The DMCA’s “access control” or, colloquially, anti-circumvention clause, is another story. It itself circumvents copyright law, putting the burden on those who have a reasonable expectation to use content in “fair” ways to prove that a technological restriction, specifically DRM, interferes with their ability to fairly use that material. This section of the DMCA requires the Copyright Office to regularly review practices and technologies to identify “particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access controls” (Copyright Office). The burden is on the users to prove uses worthy of exemption from the anti-circumvention rules, pitting them against copyright owners who implement DRM.
In 2009, the Electronic Frontier Foundation filed for an exemption for DVD ripping: “The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that ‘ripping’ DVDs is always a violation of the DMCA, no matter the purpose.” Here we see a very clear conflict not just between copyright owners and remix culture, but also between copyright holders and average users. How can I get watch the DVD I purchased on my iPod without ripping? Making people feel like criminals for using things in ways they are reasonable to expect does not a healthy market make.
These mechanisms of control may have the adverse effect, as Mulligan et. al. show, of pushing users away from their content in search of DRM-free or even seek alternatively licensed content, such as that that licensed under Creative Commons. Technological controls are antithetical to a culture where remixing and reinventing is seen not as theft but as creation and expression. More troubling for content providers is that DRM threatens to start a control-cracking arms race, where every new mechanism for control is met with amateur and professional technologists eager to bust the latest measure.
Shaping Law: Copyright and Best Practices
As indicated above, Web 2.0 sites and services provide showcases for user-generated content like remixes, mashups, blogs, wikis, and podcasts (Lee, p. 1460), pushing this work before public eye. Because of the scope and the large number of users involved, informal practices have emerged that are vital to maintaining the creativity enabled by new technologies and allowed by law. Most importantly, people really want to share their work.
Formal copyright law has changed over time to accommodate customs and practices. For example, the Family Entertainment and Copyright Act of 2005 codified the usage of “for private home viewing” (Lee, p. 1466). However, Congress has yet to incorporate customs and informal practices of remix culture as it has for contracts with the Uniform Commercial Code (Lee, p.1468). Part of the problem is that the myriad stakeholders have yet to establish and promote a set of standards, customs, usages, and requirements As a result, there is a “lack of clear rules for fair use and misappropriation” for the average user (Lee, p.1468). Without such codes of best practices, user groups tend to converge upon an informal norm through peer practices. For example, Internet communications are prone to the issue of “warming,” where users are “emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice” (Lee, p.1459). This embodies the “do first, ask later” attitude we discussed earlier. To complicate the issue, usage norms challenge a legal framework established long before the Internet (Lee, P.C. et. al. Introduction to the Copyright Reform Act, University of CA Berkeley on behalf of Public Knowledge, Feb 13, 2010, p.2). Because of the high participation rate of user-generated content on the internet, users are in a position to “wield substantial power in influencing the shape of copyright law” (Lee, p.1459).
Yet even as the gray area widens, since copyright operate as an opt-in system where the burden of seeking permission is on the part of the user (Band p.3), users have the responsibility to learn what is and is not legal practice. Since a single code does not exist yet, groups like American University’s Center for Social Media have facilitated negotiations between users and copyright holders. From these negotiations have come a series of Best Practices for Fair Use guides, each of which serves to educate a specific user group on fair use of copyrighted content. Interesting here too is YouTube’s “Copyright Tips” page, which we got to via “Copyright Notices,” the page required by the safe harbor clause containing contact information for infringement notices. The page exists, but it’s not easy to find. Through these guides, users learn the basics of fair use under law, like what ‘purpose and character of the use’ means and whether or not their use can be interpreted as commercial or if it could affect the ‘potential market for or value of the copyrighted work’ (Band, p.4). When remixing or reusing, users also ought to learn to interpret the appropriate amount and level of substantiality of copyrighted work.
To achieve balance, the law is designed to discourage copyright holders from imposing private censorship or stifling legitimate transformative uses that foster creativity. As the court wrote in OPG vs. Diebold, “… the goal of copyright law is to protect creative works in order to promote their creation” (p. 6). Fair use in the Copyright Act is intentionally vague, encouraging communities that include both users and copyright holders to assume the responsibility of shaping their community best practices. These best practices, led by groups like the Center for Social Media, could also shape the future of copyright law.
Additional Resources
United States Copyright Office: circulars and fact sheets
United States Copyright Office: Fair Use fact sheet (PDF)
Library of Congress, “Taking the Mystery out of Copyright”
Pam Samuelson. Legally Speaking: The Dead Souls of the Google Book Search Settlement. O’Reilly Radar (April 17, 2009).
Fair Use & Copyright at American University’s Center for Social Media
Jess Hemerly. The Future of Video: Authorship, Appropriation, and Control. Institute for the Future (May 2009).
Creative Commons Licenses
Comments Off on Do First, Ask Later: Copyright, Norms and Expectations