March 2, 2007
Cramming That Genie Back into the Bottle: Industry Desires to Protect Copyrighted Video Online

"The genie has to be put back in the bottle, or the entire economics of the entertainment industry on a global basis are subject to ruinous counterfeiting."

That quote comes from Medialink Worldwide CEO and President Laurence Moskowitz. Guess what the subject is? Would you believe it if I said copyright?

The quote is part of an interesting piece from Daisy Whitney at TelevisionWeek from Monday, focusing on the major questions surrounding copyright protection for online video sites, certainly a hot-button topic in the industry and regarding online distribution of television and film products.

These include seeking new types of technology to imbed in videos to protect the copyright, as well as ways in which to seek out content that violates copyright, such as the Audible Magic deal with MySpace Whitney refers to, in which Audible Magic would help the social networking site "filter out unauthorized video and audio from its site."

Whitney writes, "Because of these ongoing infringements, copyright owners are starting to demand that sites include built-in tools to protect their asses, while sites themselves are recognizing they must be more proactive material."

One technology Whitney examines is digital fingerprinting, in which video on a site is matched with a registration of official content from rights holders, to find out if it violates a copyright. The article points out that the technology can also be used to identify popular content and help create ways in which to create ad-sharing revenues around user-posted content on sites like YouTube and MySpace.

Definitely, identifying blatantly pirated content is an issue, but I've written about this before and will reiterate--the problem with the industry is that it's casting its net too wide, ignoring the issue of fair use completely and likening quoting with piracy. I think the most effective form of policing this content, of getting the "genie back in the bottle," is not trying to put the whole genie back in. After all, and they'll have to learn this eventually, that genie wants to stay's not just hanging around for three wishes. And the industry really only has one for video sharing and quoting and piracy... pleasegoaway...pleasegoaway...pleasegoaway...

I realize Moskowitz' quote may be taken out of context, but I think the rhetoric of putting the "genie back in the bottle" shows how reactionary the industry has been. People wanted to do the same with the VCR and TiVo as well.

Back in January, I pulled out an equally great quote, from Brian Grazer who produced 8 Mile. He said, in a New York TImes article, "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."

This was as part of my piece, "Quoting and Piracy: How the Industry Lumps Together Two Very Different Activities".

At the time, I wrote:

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.