February 7, 2008
Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part I

I posted this entry on my blog yesterday from the west coast, having flown out to California to participate in 24/7 A DYI Video Summit being hosted by the University of Southern California. The event brings together videomakers from a range of different communities -- everything from fan video producers to activists who use Youtube to get their messages out to the world. I am thrilled to be participating on a plenary panel on the future of DYI Video, featuring Yochai Benkler, John Seely Brown, Joi Ito, and Lawrence Lessig, hosted by Howard Rheingold.

As I was getting ready to head out to the conference, I conducted an interview with media scholar Pat Aufderheide (of the Center for Social Media) and Law Professor Peter Jaszi, both from American University, and I thought I would share it with the Consortium's readers as well.

I've long been interested in the work Pat and Peter have been doing promoting fair use in relation to a range of different communities of practice -- including documentary filmmakers, media literacy instructors, and producers of online video content. We featured some of the work they were doing through the Media in Transition conference at MIT last year.

You can hear a podcast of that discussion online. I wanted to check in with them because in the past few months, they've issued several major new studies on the impact of copyright confusion on our culture, work which is setting the stage for efforts to identify "best practices" and to negotiate "acceptable use" standards to broaden the protections afforded those of us who are tying to integrate media production activities into our classrooms or who are involved in mashing up content as a form of expressive practice. Today, I am running the first installment of this exchange.

A recent study by the Pew Center for Internet Research suggests that almost 60 percent of teens on line have produced their own media content and a growing percentage of them are circulating that content beyond their immediate friends and families. What are the implications of this growth of grassroots media production for our current understandings of fair use?

PA: A more participatory media culture is definitely going mainstream. While it's still true that many more people watch than make at the moment, you're right to point out that young people are growing up as makers, and seizing upon blogs, online video and social networks to express and even form their identities. There are DaxFlame aficionados, and there are dozens of take-offs on "Dick in a Box," and "Dramatic Chipmunk" has spawned "Dramatic Snake" and "Dramatic Squirrel" and even compilation and fan websites for the phenomenon.

Many practices enthusiastically being pioneered and developed online involve use of copyrighted material. That's normal for new cultural creation. It builds on existing culture. Our culture is markedly commercial and popular, and our current copyright regime features default copyright (your grocery list is copyrighted when you've written it down) and very, very long terms (meaning that nothing you'd want to quote ever seems to fall into the public domain). So quoting of copyrighted culture will continue to be a key tool of new cultural producers.

Those new cultural producers often today believe that they're doing something illegal by quoting copyrighted culture. That's partly because of relentless miseducation on the part of corporate owners of content. They are justifiably terrified of peer-to-peer file sharing and other digital copying that threatens their business models. Their response has been to demonize all unauthorized use of copyrighted material as theft and piracy.

At the same time, they're desperately trying to revamp their business models for a digital era, and are making the blanket assumption that all unauthorized copying could be a threat to some as-yet-unimagined or as-yet-unpracticed business model.

Well, you wouldn't want to be them at this moment, it's true. At the same time, when they ignore the right of fair use, they are ignoring a very vital part of the law.

They're now worried about online video as a kind of "DVR to the world." So content providers like NBC Universal and Viacom are working out deals with online video providers like Veoh and MySpace, for specialized filters and software to identify copyrighted material. These filters will be able to "take down" videos that are copies of copyrighted material. The trouble is, nobody has yet figured out how to protect online videos that may be using copyrighted material legally, under fair use. As Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, says, it's like going tuna fishing without a dolphin-safe net.

Until now no one has known how big the problem of accidentally suppressing legal work really is. Our study, called "Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video," (available at centerforsocialmedia.org/recut) demonstrates that it could be a very big problem indeed.

Many online videos, we showed, use copyrighted material in one of nine ways that are eligible for fair use consideration. (We weren't saying that they all are examples of fair use, only that these kinds of uses can be seen and in some cases have been widely recognized as fair use.)

Many of the precedents concerning fair use could be read as protecting specific classes of users -- the right of journalists or academics to quote for the purposes of reviews or critical commentary, for example. To what degree can or should those rights be extended to include amateur media producers?

PJ: It's really not a question of extending rights, but of making users aware of the right they already have. Fair use has been around as a judge made doctrine since the mid-19th century, and back in 1976, in its (for once considerable) wisdom, the Congress came up with a formulation of the doctrine that was general in its application rather than specific to any area or areas of practice. The problem for any group of practitioners is knowing how fair use applies to them and having the collective courage to rely on it. Some groups (journalists and academics are good examples -- and commercial publishers are another!) have done well at this over the years, and as a result they enjoy use rights that are apparently more extensive. But the truth is that documentary filmmakers, K-12 teachers, and on-line video producers have the same entitlement to fair use as everyone else.

That's why the "Best Practices" approach that we've been working on over the past several years is so important. It's an effort to help practice communities claim their legal rights by formulating consensus statements of what kinds of unlicensed use of copyrighted materials are necessary and reasonable for the creative work they do.

YouTube's impact has directed much greater public attention onto the work of these amateur media producers. In your white paper, you walk through a range of different genres of media appropriation and remixing. Which of these are the most clearly protected under current law? Which seem most at risk?

PA: First, a note: Because we're at the end of the mass media era, and because the pioneers of participatory media have been end-users or non-commercial producers, we think of this as an "amateur" movement. But it won't be for long. It'll just be expression in an open digital environment. Some of that expression, whether it's produced by professionals or not, will be monetized; much of it, most of it, will be available to be monetized. So the neat distinctions between professional and amateur, and between non-commercial and commercial use, are getting a lot messier and will soon be unhelpful. One thing we're very sure of is that we won't solve this problem by creating a non-commercial, amateur zone. Now, everyone's a player.

In our study, we identified a wide range of kinds of practices -- remix/remash (Ten Things I Hate about Commandments), quoting of a whole work for online commentary (The Worst Music Video Ever), critical commentaries (analysis of Fox news bias for instance), tribute videos (Steve Irwin), diaries (Me on Stage with U2 -- again!!), to name a few. We also saw a wide range of actual practices within those genres. One of the things we didn't do was to pass any lawyerly judgment on the fair use of any particular instance. We stopped at identifying kinds of practices as fair-use eligible, which is all that the survey we did permits us. We think this is very valuable because the kinds of practices are all clearly eligible for fair-use consideration. We hope that the next phase of our work, creating a best-practices code, will provide guidance to help people make judgments for themselves about what is fair use.

You can, however, make some generalizations:

  • It gets harder to claim fair use the closer people get to merely quoting the work without commenting on it, reframing it, or adapting it.

  • It gets harder to justify fair use the closer the copier's purpose is to the original.

  • It gets harder when the quotation is longer or more extensive than is justified by its purpose.

  • It gets harder to claim fair use the more the copier is intending to monetize the original item in order to compete with the copyright owner.

  • It gets harder when proper credit isn't given.

We also found that it's very easy for everybody to understand why it's o.k. to use copyrighted material for critical, political and social commentary. People understand that you can't critique something without referring to it, which in video would also involve hearing and seeing it. They also see critical speech as a great example of the First Amendment.

What's harder for people to grasp is that it's also o.k. to use copyrighted material to make new work that may be illustrative or celebratory or illustrative rather than critical, or may re-imagine the culture as remixes do, or may archive it, or may simply record reality that includes it. Why is that so hard to grasp? All this activity uses the same cultural processes, the building of new work and meaning on the platform of the old. We think it's because people have cultivated, in the mass media era, a cult of the author, a belief in creativity as the product of the genius of the individual creator. This of course flies in the face of everything we know about the creative process, which is a social, collective and iterative one. It also flies in the face of cultural evolution. After all, until very recently in the West, copying was homage, copying was learning.

Many of these amateur media makers know little about the law. Most of them lack the resources to seek legal advice about their work. What steps can or should be taken to protect their fair use rights?

PJ:We're suggesting that a "blue ribbon" panel of experts in law and communications should take on the task of developing a set of "Best Practices" for fair use in on-line video production. The first step would be to talk with a wide range of producers (and platforms) about what they regard as necessary and appropriate quotation. Then the panel would be in a position to craft a document that would be a useful reference for media makers themselves and for the platforms that make their work available – as well as for the content owners themelves. In particular, it would be a point of reference that platforms and content owners could use when they develop mechanisms (like filtering techniques or take down protcols) designed to block or disable infringing on-line content. Everyone seems to agree that mechanisms of this kind shouldn't interfere with fair use, but unless there is some consensus about what constitutes fair use in this new area of practice, these pious affirmations aren't likely to be translated into meaningful practice. In the extreme and unlikely case that an issue involving fair use and on-line video were to find its way to court, a "Best Practices" statement also would help to guide the courts. Following a long-standing (and sensible) tradition in fair use decision-making, judges in these cases pay close attention to practice communities' views of what is fair and reasonable. (More about tradition and its implications is at www.centerforsocialmedia.org/files/pdf/fairuse_motionpictures.pdf),

And, of course, if a media maker working within the framework of a "Best Practices" document were to be sued or otherwise harassed, there would be a healthy supply of expert IP lawyers lining up to defend that person on a pro bono basis. IP progressives -- and there are plenty of them in the legal community -- always are looking for good "test cases" to demonstrate the reach of fair use. In fact, Stanford's Fair Use Project is actively looking for such cases, and would offer legal defense if it could find one.

Pat Aufderheide, one of American University's Scholar-Teachers, is a critic and scholar of independent media, especially documentary film, and of communications policy issues in the public interest. Her work on fair use in documentary film has changed industry practice, and she has won several journalism awards. She is the founder, in 2001, of the Center for Social Media, which showcases media for democracy, civil society and social justice. She recently received the Career Achievement Award for Scholarship and Preservation from the International Documentary Association.

Peter Jaszi is faculty director of the Glushko-Samuelson Intellectual Property Law Clinic and professor of law. He holds expertise in intellectual property and copyright law. He was Pauline Ruvle Moore Scholar in Public Law from 1981-82; Outstanding Faculty Scholarship Awardee in 1982; and he received the AU Faculty Award for Outstanding Contributions to Academic Development in 1996. He is a member of the Selden Society (state correspondent for Washington, D.C.). Previously he was a member of the Copyright Society of the U.S.A. trustee, 1992-94; International Association for the Advancement of Teaching and Research in Intellectual Property; National Zoological Park, Washington, D.C., Animal Welfare Board, 1986-present; Library of Congress Advisory Committee on Copyright Registration and Deposit (ACCORD), 1993. He has written many chapters, articles and monographs on copyright, intellectual property, technology and other issues. He was editor of The Construction of Authorship: Textual Appropriation in Law and Literature Durham, N.C.: Duke University Press, 1994 (with M. Woodmansee) (also published as a law journal issue, 10 Cardozo Arts and Entertainment Law Journal 274, 1992). He is co-author of Legal Issues in Addict Diversion (Lexington Books, 1976) and Copyright Law, Third Edition (Matthew Bender & Co., 1994).