January 19, 2007
Quoting and Piracy: How the Industry Lumps Together Two Very Different Activities

"It bothers me artistically. Here's this thing where you have no control; they are chopping it up and putting your memories in a blender." -Brian Grazer, producer of 8 Mile.

The quote above, taken from Laura M. Holson's fabulous New York Times article from Monday about Hollywood's response to YouTube, is in response to mash-ups of the Eminiem battle rap flick 8 Mile and the cultish hit Napoleon Dynamite, a video that, as of the writing of the article had received 60,000 hits but also the ire of the moviemakers whose clips were used. The plan now is to create the type of responses to YouTube mash-ups that will eliminate this quotability of their work.

The article addresses two sorts of behaviors of posting copyrighted material, one being short clips or mash-ups and the other being uploading whole chunks of the movie, so that one can watch each chunk and see the whole thing, as a user has done with 8 Mile. The trouble is, in order to resist setting the precedent to allow too active use of its copyrighted material, companies' responses have been to discredit the whole process and instead think of ways they can safely put content up on the Web, where they are in control.

However, these are two very different behaviors--one quoting from a pop culture source and the other just plopping a copy of that source up on the Web in full.

I've written before about how the power of YouTube is in the ability to quote, one of the main reasons why an industry-driven YouTube competitor likely wouldn't work--companies are calling everyone pirates instead of trying to distinguish between someone blatantly ripping off content and someone who is trying to creatively edit and quote from that content.

A mash-up, in my mind, is one of those quoting abilities, just like showing a clip from a show to make a point. These make vibrant marketing tools, as they show enough content from your show to whet others' appetites (if the show's good, anyway), without users being able to plunk the whole show up for free. I think people very well should be upset about piracy, but quoters are not pirates.

For instance, this blog post is a mash-up of sources. I am taking some of Laura M. Holson's words, adding in some of my own, putting a link to things I've written before. The idea of a text mash-up is what drives the blogosphere, and no one seems to mind that we are taking Ms. Holson's words and putting them in our blogger blender. In fact, one would think Holson would be pleased that I'm previewing her article and driving traffic in that direction. Of course, there are some journalists concerned about the blogosphere stealing their scoops, and that's a behavior that's bad, in which articles are pulled in full from your site instead of reasonably quoted from and then driving traffic back to that site.

As a blogger, I know that I'm excited to have people quote from my posts, and not just because it drives my Technorati ranking upward when they link back but because it means my ideas are valuable to others. On the other hand, I've seen more than one of my posts on message boards, apparently now the ideas of some other author instead of me. Not quite as good of a feeling.

Why can't lawyers work toward developing a legal distinction between these two behaviors? The mash-up and the quote are the fans' expression, and I do not see why visual and audio material should have a different precedent set than text. Quote away from these textual artifacts--it should fall well within reason for fair use. The ability to quote is imperative for fostering the correct balance between fan communities and shows, and both sides must show respect to the other if they want to develop the type of relationship most poised to take advantage of our contemporary convergence culture.

See Holson's article in full here.