Copyright and Fair Use

March 14, 2011

Lewis Hyde: upcoming talk here at MIT and previous CMS MIT5 appearance

Lewis Hyde's The Gift: Imagination and the Erotic Life of Property (New York: Vintage. 1983) figured prominently in the C3 Spreadable Media White Paper (Spring 2009).

Lewis is here at MIT speaking this week on his new book Common As Air - which takes up current notions of intellectual property and pursues it back to the founding fathers and forward to Bob Dylan. His talk will be Thursday, March 17th @ 7 p.m. (MIT Room 3-270 [map link here]). This talk is part of the MIT Writers Series - sponsored by MIT Writing and Humanistic Studies.

Lewis also took part in an MIT5 Panel, with CMS Prof. David Thornburn moderating, entitled Folk Cultures and Digital Cultures. A write-up on the panel is available at:

Video of the panel is embedded below.

May 14, 2010

Fan Edits: Improving the Original (Without Changing the Original?)

A fan edit is a production in which (what would have been considered) an ordinary viewer makes changes to an original film (or films) to create "a new interpretation of the source material" (Wikipedia; link above).

Edits of films ("cuts") have been around for decades, and director's cuts have long been an additional supplement to many film releases (or releases unto themselves). But as digital production technology became more widespread, cheaper, and easier to use, ordinary consumers began to take commercially-distributed films (which also became cheaper and of higher quality for consumer purchase) and edit them in their own homes: essentially creating "director's critic's edits."

One of the most popular early fan edits (and still to this day one of the most popular) is The Phantom Edit, which took George Lucas's fourth Star Wars film, The Phantom Menace, and reorganized the footage to create a different, "better" film (the story of which is chronicled in this article).

There are vibrant politics around fan edits, from issues of fair use to questions of aesthetics and vision. More on these issues follow after the jump.

Continue reading "Fan Edits: Improving the Original (Without Changing the Original?)" »

March 16, 2010

Vidding Kung Fu Panda in China

From time to time, I use this space to showcase the global dimensions of the kinds of participatory culture which so often concern us here. When I first started to write about fan culture, for example, the circuit along which fan produced works traveled did not extend much beyond the borders of the United States, Canada, the United Kingdom, and perhaps Australia. American fans knew little about fan culture in other parts of the world and indeed, there was often speculation about why fandom was such a distinctly American phenomenon.

Now, fans online connect with others all over the world, often responding in real time to the same texts, conspiring to spread compelling media content from one culture to the other, and we are seeing a corresponding globalization of fan studies. Yet, some countries remain largely outside of field of view, because of language barriers, cultural differences, political policies, and alternative tech platforms.

Consequently, most of us know very little about how fan production practices have spread to China -- which is too often described in terms of its piracy of American content and too little discussed in terms of its creative repurposing of that content to reflect their own cultural interests. So, I am really excited over these next two installments to share some glimpses into fan culture in China -- specifically focusing on the vidding community there (but also discussing other forms of fan participation.)

These two posts were created by Lifang He, an Annenberg student who took my transmedia entertainment class in the fall and who is doing an independent study with me this term to expand her understanding of the concept of participatory culture. Here, she talks about how Kung Fu Panda got read in relation to the economic crisis in China, and next time, she will tackle the array of different fan responses to Avatar.

Continue reading "Vidding Kung Fu Panda in China" »

March 8, 2010

C3 White Paper: Tacky and Proud, Exploring Tecnobrega's Value Network

The third installment of our 2009 C3 white paper releases. This white paper was penned by Ana Domb Krauskopf.

Tacky and Proud: Exploring Tecnobrega's Value Network

This paper explores the role of audiences as productive actors in the music industry and uses the value network as an analytical tool to facilitate the process of locating audience involvement and specifying the audience's role as creators of economic and symbolic value. Our main case study in this white paper is Tecnobrega ("Cheesy Techno"), a grassroots Brazilian music industry found in Belem (the capital city of Para, a northern state of Brazil). Tecnobrega evolved outside mainstream media, yet it became a successful music scene thanks to its innovative forms of production, distribution, promotion, and its strong relationship with audiences. Tecnobrega has also benefited from increasing widespread internet access throughout Brazil.

Download the executive summary or the entire paper.

March 2, 2010

Henry Jenkins and Camille Bacon-Smith at Gaylaxicon 1992

This week, I am sharing a piece from the historic archives of the Aca-Fan world: an exchange between Camille Bacon-Smith and myself at Gaylaxicon 1992. You should know that both Enterprising Women and Textual Poachers were very new books at the time this exchange took place, having appeared just a few months apart, and that the fan world was still trying to process what it meant to be the object of academic study. I would later, in fact, write an essay on the Gaylaxians themselves which appeared in my book (written with John Tulloch), Science Fiction Audiences, and was reprinted in an edited form in Fans, Bloggers and Gamers. I am hoping that these documents may be a source of nostalgia for some and a historical resource for others. In this segment, the two authors introduce themselves, their relations to fandom, and the central arguments of their books, and then instantly get pulled into a discussion of copyright and authorial rights, issues never far from the surface when fandom is concerned.

Transcript of a panel discussion between Henry Jenkins and Camille Bacon-Smith, moderated by Shoshanna, at Gaylaxicon 92, a science fiction convention by and for gay fandom and its friends, on 18 July 1992. At that time Henry was about to publish Textual poachers: Television Fans and Participatory Culture (Routledge, 1992); Camille had published Enterprising Women: Television Fandom and Popular Culture (U. of Penn. Press, 1992). Shoshanna is a fan. All fans identified here are identified with the name/pseud they requested.

Continue reading "Henry Jenkins and Camille Bacon-Smith at Gaylaxicon 1992" »

February 24, 2010

More Events: Online Video, Giant Robots, and a Personal Talk About Japanese Popular Culture

Today, I'd like to call your attention to a number of interesting, upcoming events that fall into the topic of convergence culture.

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First, the inaugural Wireside Chat w/ Lawrence Lessig at Harvard Law School.

Second, a talk by Ian Condry about anime and transmedia.

And finally, I'm giving a talk at Ignite Boston 7 about fan engagement with animated characters.

Continue reading "More Events: Online Video, Giant Robots, and a Personal Talk About Japanese Popular Culture" »

February 22, 2010

C3 White Paper: More Than Money Can Buy: Locating Value in Spreadable Media

The next installment of our 2009 C3 white paper releases.

My white paper extends the work I began with If It Doesn't Spread, it's Dead in 2008. It digs deeper into how the social principles that shape the flow "free" goods and services online shape concepts of value.

Through theoretical analysis and practical case studies, the paper:

  1. Explains why "free" things aren't really free, and the social contracts that regulate these exchanges
  2. Outlines the key differences between socially-driven exchanges and market-driven ones, with an eye towards how to develop online monetization models that can bridge the two systems.
  3. Breaks down examples of best (and worst) practices
  4. Proposes general principles for understanding online communities and socially-motivated content creators, and how to build business models around their activities.

Download the executive summary or the entire paper. You can also view the executive summary online at my blog: part 1, 2, and 3

Let me know what you think in the comments or tweet @xiaochang.

February 2, 2010

Memes as Mechanisms: How Digital Subculture Informs the Real World

In the last week of January, an interesting conversational thread broke out on the Association of Internet Researchers mailing list regarding a video about scholarship in the "critical commons," on the debate between digital humanities and media studies. The video follows below, but judging by the preview image it might not be exactly what you expect:

Professor Charles Ess reacted to the video, writing:

How profoundly disappointing, if not on the edge of insulting. If (a) you know German reasonably well, and especially if (b) you've seen the terrific film, Der Untergang, that is ripped off here - it doesn't strike me as funny at all. (emphasis mine)

Jeremy Hunsinger, who had circulated the video to the mailing list, responded:

It is actually just a spin off of a meme that uses this clip from that movie, there are probably 30 or so different re-texts and mashups i've seen of this clip. The joke, i think, of the meme is that it never ever comes close to the German, nor is it ever supposed to, nor is the content really supposed to be evil or really related to the clip, it is a play of contrasts and a play of hyperbole. I think you hit it on the head, it is supposed to be contrary to intentions, that's sort of its point. ... however, i'm pretty sure that neither german, nor evil is supposed to be the point here. (emphasis mine)

Before elucidating the above situation (the entire thread of which can be viewed in the AoIR archives here), I want to take a step back to examine the idea of "meme" -- a unit of cultural information -- once more.

Continue reading "Memes as Mechanisms: How Digital Subculture Informs the Real World" »

January 8, 2010

Three Converging Presentations: Digital Migrants, Western Otaku, and Our Google-ized World

At the end of the autumn semester, the Comparative Media Studies department hosted a set of colloquia called Comparative Media Insights. Three of these presentations focused heavily on digital culture and fit neatly into our interests here at the Consortium, so I want to share them (especially since I'm sure all of you are still recovering from the holiday and wouldn't mind a couple intellectual, mid-day breaks).

The first talk is by Lisa Nakamura, a professor at the University of Illinois, Urbana Champaign. Her presentation, entitled Race, Rights, and Virtual Worlds: Digital Games as Spaces of Labor Migration, focuses on digital migrants, workers who labor in virtual worlds for other virtual world users. A lot of the work is done across transnational networks, such as gold farming in World of Warcraft performed by laborers in China for users in the United States. Lisa argues that in relation to these workers a type of "transnational working class" is being created, and she wishes to point out that these communities of workers provide a different perspective to the cosmopolitan, global, or converged Internet.

You can listen to a podcast of Lisa Nakamura's talk by clicking here or using the embedded player below:

As ICT's become available to new groups of users, notably those from the global South, new social formations of virtual labor, race, nation, and gender are being born. And if virtual world users' claims to citizenship and sovereignty within them are to be taken seriously, so too must the question of "gray collar" or semi-legal virtual laborers and their social relations and cultural identity in these spaces. Just as labor migrants around the globe struggle to access a sense of belonging in alien territories, so too do virtual laborers, many of whom are East and South Asian, confront hostility and xenophobia in popular gaming worlds and virtual "workshops" such as World of Warcraft and Amazon's Mechanical Turk. Do these users have the right to have rights? This presentation considers the affective investments and cultural identities of these workers within the virtual worlds where they labor.

Lisa Nakamura is the Director of the Asian American Studies Program, Professor in the Institute of Communication Research and Media Studies Program and Professor of Asian American Studies at the University of Illinois, Urbana Champaign. She is the author of Digitizing Race: Visual Cultures of the Internet (University of Minnesota Press, 2007), Cybertypes: Race, Ethnicity, and Identity on the Internet (Routledge, 2002) and a co-editor of Race in Cyberspace (Routledge, 2000). She has published articles in Critical Studies in Media Communication, PMLA, Cinema Journal, The Women's Review of Books, Camera Obscura, and the Iowa Journal of Cultural Studies. She is editing a collection with Peter Chow-White entitled Digital Race: An Anthology (Routledge, forthcoming) and is working on a new monograph on Massively Multiplayer Online Role playing games, the transnational racialized labor, and avatarial capital in a "postracial" world.

The second presentation is given by Mia Consalvo, a professor at Ohio University and also a visiting professor at MIT. Her talk, Western Otaku: Games Crossing Cultures, examines digital games -- particularly MMORPGs -- as spaces of transnational cultural exchange, places of hybridity formed by cross-cultural contact. She is particularly interested in the relationship between Japanese and American gamers, both in how the industry impacts transnational reception and in how players interact with each other across languages.

Mia's talk comes in convenient video podcast form below:

But you can also listen to the audio-only version of the podcast here:

Or download it!

From Nintendo's first Famicom system, Japanese consoles and videogames have played a central role in the development and expansion of the digital game industry. Players globally have consumed and enjoyed Japanese games for many reasons, and in a variety of contexts. This study examines one particular subset of videogame players, for whom the consumption of Japanese videogames in particular is of great value, in addition to their related activities consuming anime and manga from Japan. Through in-depth interviews with such players, this study investigates how transnation fandom operates in the realm of videogame culture, and how a particular group of videogames players interprets their gameplay experience in terms of a global, if hybrid, industry.

Mia Consalvo is a visiting associate professor in the Comparative Media Studies program at MIT. She is the author of Cheating: Gaining Advantage in Videogames and is co-editor of the forthcoming Blackwell Handbook of Internet Studies.

The final presentation (and my favorite of the bunch) is given by Siva Vaidhyanathan, a professor at the University of Virginia. He talks about The Googlization of Everything, a point in the convergence of real and digital culture by one company: Google. Phrased in one of William Uricchio's questions during the Q&A, in its attempt to "informationize" the world, Google has had to face "the pushback of culture." As I wrote earlier this week, Siva argues that on top of being its users, we act as Google's product. Our concerns over privacy (Google Maps' problems photographing Japan), property (Google Book Search scanning), and pride (transforming ourselves into Google's "data") therefore conflict with our understanding of ourselves as the customer versus the product.

Listen to his podcast below, or download it here.

Google seems omniscient, omnipotent, and omnipresent. It also claims to be benevolent. It's no surprise that we hold the company to almost deific levels of awe and respect. But what are we really gaining and losing by inviting Google to be the lens through which we view the world? This talk will describe Siva Vaidhyanathan's own apostasy and suggest ways we might live better with Google once we see it as a mere company rather than as a force for good and enlightenment in the world.

Siva Vaidhyanathan, cultural historian and media scholar, is currently associate professor of media studies and law at the University of Virginia.

May 12, 2009

IP or Censorship: DMCA take-downs of racism protest

Recently, in one of the "routine sweeps" of DMCA take-downs we've all become accustomed to throughout a variety of user-generated content platforms, the contents of the store were removed from on-demand retail platform was a non-profit effort that sold t-shirts to protest the all-white casting of non-white leads in the Avatar: the Last Airbender live-action film (more details on that particular controversy here and here The store sold shirts with original art and designs, mostly slogans such as "Aang ain't white," and none of the products on the site contained any images from the series (check out the designs) -- the only thing "in violation of Viacom's intellectual property rights" were words used to talk about the Viacom property. (In an update, a counter-claim was filed and the store was restored, with both and Viacom refusing responsibility and laying the blame with the other party).

We are, by now, long accustomed to epic failure on the part of DMCA takedowns initiated by major media conglomerates. Viacom, in particular, has been a visible and often hilariously illogical offender, with its memorable removal of a clip Christopher Knight put up on youtube from the show WebJunk 2.0, which had featured none other than Knight's own campaign commercial (presumably aired without permission).

A version of this was originally posted at

Continue reading "IP or Censorship: DMCA take-downs of racism protest" »

April 27, 2009

"Fun with YouTube's Audio Content ID System"

It's very evident why they choose to mute the entire audio track of a positively ID'd video instead of just the part with the problem audio: The fingerprinter can only reliably say "yes, [one particular song] is in here, somewhere," but it doesn't know exactly where in the video the infringing content starts or for how long it plays. It's far easier to just nuke the entire audio track than try to figure out precisely how to cut into it.

Remember #silentyoutube, when YouTube started switching out "unauthorised audio tracks" rendering videos silent? Well just how does YouTube's audio content ID system work? Slashdot links to an interesting analysis and discussion of the functioning of YouTube audio fingerprinting technology by someone from Rochester Institute of Technology's Computer Science House (sorry, I couldn't work out who the author is).

Continue reading ""Fun with YouTube's Audio Content ID System"" »

February 12, 2009

En Route to Tecnobrega

The last city to touch the Amazon river is also the home of Tecnobrega, a passionate musical movement rooted in the traditional Paraense rhythm, brega, which literally means cheesy or corny. This music, or more specifically, the fan communities around it, are the focus of my research this term at C3.

Tecnobrega is what Ronaldo Lemos, Project Lead of the Creative Commons Brazil, calls a "globoperipheral music". He sustains that within this type of musical environment the "idea of a "periphery" is not related to a geographical concept, nor does it have to do with a division between rich and poor, it has evolved and in its evolvement it has become both North and South."

Continue reading "En Route to Tecnobrega" »

December 5, 2008

Revoking Spreadable Media: Soulja Boy take-down notices

Last week, just in time for the holiday season, CMS colleague Kevin Driscoll received a Youtube DMCA take-down notice for Crank Dat Roflcon (video viewable here on Fred Benenson's blog). Crank Dat Roflcon was part of the Internet Conference held at MIT last year in conjunction with Harvard Free Culture and the Berkman Center, as well as the follow-up to our own CMS Soulja Boy project, Crank Dat MIT with free software guru Richard Stallman.

Continue reading "Revoking Spreadable Media: Soulja Boy take-down notices" »

November 21, 2008

FOE3 Liveblog: Conversation -- Wealth, Value, and Social Production

Henry Jenkins and Yochai Benkler see themselves as a closely related, which that they had read each other's book in terms of thinking about differentially motivated players.

Nonprofit distribution of content - now we can begin there. In this moment of peer production, what are the nonprofit, public television.

YB: implications that I see are - 1. A change of role. In an environment where communicating with large groups, public media was uncorrelated with market flows of cultural production. That cost barrier isn't there anymore, so the necessity of sufficient level of ____ isn't there anymore. So is it the elite aspect of it? When you look at free software and open access books and the role of foundations that harness work of peers into whole. Nonprofits are becoming helping groups become more effective in what they do. Public media needs to
instead of producing educational materials that are stable good but to provide ways in which teachers can produce content. WGBH - Nova - convert content into spreadable media in ways that are pitched from a different perspective. Understanding the need for a locus of high capital production has become less important. What little public funds there are can go further if they're oriented toward provided opportunities for generating content rather than created fixed content. Mentione - sunlight foundation, apache software

HJ: Public tv used to provide diversity, but it couldn't provide the social network, the passion for diversity. In an era of social networks, PBS plays a role as a digital network. Very good at soliciting us as contributors but stops once pledge week ends. Function it plays in joining people into a real network

YB - not a non seq - WSJ creating a network of paid subscribers. A signal about what kind of person they are. Same thing possible with public television, except not an issue of payment but participation. Not sure if it would capture young people.

HJ: what;s your research showing about what motivates people to join social networks?

YB: not just social networks-- we're slowly coming to accept (loosely defined "we") that academia is dominated by a view of selfish rationality. Shared perception that this is largest modality of perception in social sciences. Image of Alan Greenspan - I relied on self-interest and it failed me. Not to be sneezed at. For me, free software as been particularly powerful in making this argument. Someone who relies on markets
renewed interest in mapping
catalog in an organized way what are human motivations
object is to come up with a sufficient usable set of clusters of human motivators, and then, what do I need to think about - using the terms of gift and worth and the gift economy. Tends to think in terms that are useful but partial. Examples - status, atomistic giving, reputation,
function of social capital - also interpersonal relatedness - a sense of identity
fascinating surveys of free software - why- reputation, expectation of future work, solving a particular problem - easily convertible into a self-interested problem. But, it turns about that people say 75% as a central aspect of their identity, of who they are, fairness, giving back, sheer pleasure, then reputations, etc. need to be part of sociality is important, what's right, fair, reciprocal, etc. Though guilt and shame can be part of it.

HJ: Web 2.0 includes economic motivations on one side and ---- on the other. How might it scrambled?

Continue reading "FOE3 Liveblog: Conversation -- Wealth, Value, and Social Production" »

September 17, 2008

Interactive Piracy: What Dialogue Really Looks Like

We here at C3 spend a lot of time thinking about copyright and IP, and the debates over "piracy" of materials online. In addition to our white paper on the topic, we have a whole blog category devoted to copyright and fair use. On the whole, however, most of our attention has been directed towards the music and film/television industries since they are the site of some of the most visible and vicious IP battles. I often overlook the games industry, who are often engaging with the same dilemmas. Recently, however, CMS colleague Josh Diaz from the MIT Gambit game lab, brought a very interesting case to my attention.

Back in early August, Cliff Harris, founder of independent PC game company Positech Games posted an open call to anyone who pirated copies of his games to tell him why. Fed up and perplexed by why people downloaded illegal copies of his games rather than paying the relatively low price per game, he did something that most major corporations have failed to considered: he asked why. Rather than going from the assumption that fans of his content were out to rip him off and seeking to correct the behavior through legal action, he made an effort to understand the motivating factors in search of problems that he might be able to address.

Continue reading "Interactive Piracy: What Dialogue Really Looks Like" »

March 21, 2008

SCMS: Gail Derecho and License to Remix

The Society for cinema and Media Studies conference earlier this month gave the Consortium its first change to officially welcome a few new consulting researchers to our project. One of those scholars is Abigail Derecho, who is currently teaching at Columbia College Chicago and who will be moving to the University of California-Berkeley in the fall. Gail and I met through the Gender and Fan Studies/Culture discussion that happened throughout last summer and fall over on C3 Director Henry Jenkins' blog and on LiveJournal, after she made various comments referring to her work on soap operas in her round of the conversation.

She and I began to share thoughts and research possibilities surrounding our common interest in soaps, leading to our planned collaboration with another C3 Consulting Researcher, C. Lee Harrington, to co-edit an anthology on the current state of the U.S. soap opera industry, entitled Search for Soaps' Tomorrow. SCMS provided me my first chance to see Gail "in action," so to speak, presenting her work, and I was especially excited to hear her present something off the path of the work we've been doing together, dealing not with soap operas but rather copyright issues surrounding the development of remix culture in hip-hop music and how legal precedents set in the early 1990s impact discussions of reappropriation of media content and video mash-ups today.

Continue reading "SCMS: Gail Derecho and License to Remix" »

March 4, 2008

"Your Move on Scrabulous!": Hasbro's Legal Facebook Faceoff

Around late November of last year, I stopped playing the popular Facebook application Scrabulous, because it was wrecking havoc on my productivity.

Back in January, I started up again, spurred on by Hasbro's crease-and-decist order and have since been nervously awaiting the outcome of the Hasbro versus Scrabulous legal faceoff. With Mattel having also joined the battle, every move might be my last (most recently played: Pledged, for 22 points). But it's telling that I decided to reintroduce the game into my still-overpacked schedule because of the need stake my claim while I still could: whether or not I plan to keep playing, I felt compelled to make known that I supported its right to exist.

According to a recent New York Times article, I'm not the only one who feels this way. Not only have multiple "Save Scrabulous" Facebook groups cropped up, some with several hundred thousand members, but the executive director of the National Scrabble Association, John D. Williams Jr., noted that "People believe it to be in the public domain . . . The idea that Scrabble belongs to a corporation is something that people don't or are unwilling to accept."

Continue reading ""Your Move on Scrabulous!": Hasbro's Legal Facebook Faceoff" »

February 10, 2008

Be Kind Rewind: Between Participation and Control

One of the great pleasures of living in Cambridge is that we regularly have access to sneak previews. About a month ago, I got to see John Sayles' latest opus Honeydripper, and just last week Michel Gondry came to the MIT campus with Be Kind Rewind. Both push different boundaries and deliver an honest, dare I say "authentic," authorial gaze. (See recent C3 posts about authenticity here and here.)

Be Kind Rewind is an unpretentious movie. Its plot, as it's accurately described onIMDB is about Jerry (Jack Black), a junkyard worker who attempts to sabotage a power plant he suspects of causing his headaches. But he inadvertently causes his brain to become magnetized, leading to the unintentional destruction of all the movies in the family store of his friend (played by Mos Def).

Continue reading "Be Kind Rewind: Between Participation and Control" »

February 9, 2008

Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part II

Earlier this week, I cross-posted the first part of an interview with media scholar Pat Aufderheide of the Center for Social Media and Law Professor Peter Jaszi, both from American University. Now that the second half of the interview is available on my blog as well, I also wanted to share it with the Consortium's blog readers.

Your team has had good luck developing a set of guidelines to provide more clarity to documentary producers about when their deployment of borrowed materials is protected under current legal understandings. Can you describe some of the impact that this report has had? What lessons might we take from those experiences as we look at the challenges confronting amateur media makers?

PA: Documentary filmmakers found their hands tied creatively, without access to fair use. So in November 2005 they developed a consensus statement, Documentary Filmmakers' Statement of Best Practices in Fair Use, through their national organizations and with our coordination, which describes four typical situations that come up for them, and what the principles of fair use are, along with the limitations on those principles. For instance, the Statement shows that in critiquing a particular piece of media, you can use that media to illustrate your point. The limitation is that you can't use more of it than makes your point. Common sense and good manners require that you let people know what it is (provide credit).

Continue reading "Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part II" »

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.

Continue reading "Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jassi, Part I" »

January 29, 2008

DRM Is Dead! (Or Is It?)

The music industry has a flare for the dramatic. As such, last year has been repeatedly portrayed as the year that the music industry broke and October as the month that sealed the deal. That was when RIAA won its first major file sharing lawsuit, reinforcing their perception of consumers as potential criminals.

More importantly, however, it was the month that Radiohead announced its pay-what-you-want scheme; Nine Inch Nails declared itself 'a totally free agent, free of any recording contact with any label'; and Madonna terminated her 25-year relationship with Warner Music Group and signed a 360 deal with Live Nation.

Continue reading "DRM Is Dead! (Or Is It?)" »

November 8, 2007

"Best Practices in Fair Use" from The Society for Cinema and Media Studies

The Society for Cinema and Media Studies has just posted a Statement of Best Practices in Fair Use in Teaching for Film & Media Educators. This statement can be accessed here.

C3 Consulting Researcher Jason Mittell, a member of the SCMS sub-committee on fair use responsible for this document, was one of its key authors.

This document establishes clear guidelines, including limitations and clarifications, for educators covering the areas of classroom screenings, broadcast recordings, derivative works, online distance education, and public domain. Of particular interest is Appendix A, which displays a chart of "Responsibilities for Displaying or Performing Film and Media in On-Line Instruction" covering the institution, the faculty, and information technology units.

Continue reading ""Best Practices in Fair Use" from The Society for Cinema and Media Studies" »

October 25, 2007

Copyright Crackdown: Coalitions, Aggregation, and Audiences (2 of 2)

Yesterday, I wrote about all the new stories arising about online video and copyright: Google's YouTube announcement, the media company pact, the shutdown of TV Links, and NBC closing out its YouTube channel. I wanted to follow that piece up with the predictions I alluded to last night, as well as some recommendations:

Some analysis...

1. The industry may actually be ready to work together - for now.

No, pacts to protect and defend copyright are not new, but we all saw what happened to the recording industry. It's very difficult to quantify revenue that one would have had, but that's not really stopping anyone. Overall, I expect more lawsuits filed by multiple plaintiffs for exorbitant damages, just to make a point and to tell television advertisers that the networks aren't allowing CPMs to increase without trying to get their audience back. Expect the creation of an industry-sanctioned YouTube-style site. How customers will react to leaving the sites they know to go to one they don't for content is yet to be seen, but I would not be overly alarmed, particularly if Hulu gets a reasonably large amount of traffic, if other networks or content producers jump on board. This leads me to my second prediction.

Continue reading "Copyright Crackdown: Coalitions, Aggregation, and Audiences (2 of 2)" »

October 24, 2007

Copyright Crackdown: Coalitions, Aggregation, and Audiences (1 of 2)

Viacom suing Google for a billion dollars may be old news, but the ten days have marked a sudden and a little bit startling push of the big media companies and government to defend copyright of video on the web. These events, although not totally unexpected, may have long-term implications for audiences in how we access television content online, and signal a need for some changes in how media companies relate to their audiences.

What happened? Replaying the last 10 days

There were four important developments this week: Google's YouTube announcement, the media company pact, the shutdown of TV Links, and NBC closing out its YouTube channel.

Continue reading "Copyright Crackdown: Coalitions, Aggregation, and Audiences (1 of 2)" »

October 17, 2007

Pragmatically Challenged: Where Do Quotes Fit in the YouTube Copyright Solution?

As those who are either members of the Consortium or who follow C3 regularly may know, we are in the process of doing some in-depth research into YouTube and the types of content that is most prevalent on the video sharing site. With that in mind, we have been paying more attention than ever to what is happening in this space. With the recent launch of the tools designed to cut out the improper use of copyrighted material, or at least offer copyright holders the opportunity to profit from the content's appearance on YouTube by offering ads, I fear that both fair use and the benefits to producers are getting lost in the process.

Let me explain what I mean. It has to do with what I feel is a very legitimate and fundamentally important aspect of YouTube: quoting. There is a substantial amount of copyrighted material on YouTube--of that, we can all surely agree. However, there is something fundamentally different about a segment from a show, a funny bit or a suspenseful bit, that is quoted in particular, versus the many people who post "last night's episode of X, Part I of V." One is trying to find the way around distribution; the other is about sharing a snippet of content that points back to the larger work, pointing to the proselytizing activities that are vital to a fan community and benefit both the fan sharing the link, those who click on the link, and the media company which the quote points back to.

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October 9, 2007

The Radiohead Revolution?

Last week, the mainstream music industry was (yet again) turned upside-down. British rock band Radiohead announced that it had finished its latest album IN RAINBOWS. Their website says:


So why is this such big news? Well, the first clue is in the band's low-key notice: "so far, it's only available from this website." In Rainbows is Radiohead's first album since they concluded their contract with EMI, and, so far, they've decided to release it on their own.

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September 21, 2007

Kentucky Weatherman Controversy Raises Issues About Privacy, Copyright, Context, and Information Traces

An event that got a lot of people talking over the past few weeks back in Kentucky, and elsewhere, have--for some people--brought up the somewhat unsavory side of online video, user-generated content, and issues of privacy and context. The weatherman and morning television personality for a local news station in Kentucky, WBKO-13, had a short video clip released of him, off-the-air, waiting for a segment on breast milk donors.

Chris Allen, the news personality, was standing at a screen, juxtaposed against a quite large illustration of the female figure, with the figure's breast next to him. Allen, in an attempt at humor toward his fellow colleagues, started feigning that he was suckling at the breast of the figure, and then reached out to do a grab, complete with "honk, honk" noises.

Continue reading "Kentucky Weatherman Controversy Raises Issues About Privacy, Copyright, Context, and Information Traces" »

September 17, 2007

Privacy and Information Ownership: The Rapleaf Controversy

The past few weeks, I've been following the controversy around Rapleaf, a company that got some attention in early 2006 as an expanded, more powerful version of Ebay's feedback system, which would allow people to build and look up the "reputations" of other by entering an email address. Profiles on Rapleaf can include everything from your age to your political affiliations to what books you want to buy, as well as testimonials from people who have done business with you (though it's unclear how Rapleaf verifies that these testimonials are legitimate). In short, Rapleaf billed itself as a way to find out what you were getting into before entering a business transaction.

That proposition quickly became rather ironic once controversy surrounding the company started picking up speed in late August 2007, when some bloggers received email notifications from Rapleaf informing them that they had been searched.
While some of the backlash was directed at the "spam" factor of receiving annoying email invitations to Rapleaf, the most vocal outrage was over the potential invasion of privacy.

Continue reading "Privacy and Information Ownership: The Rapleaf Controversy" »

August 27, 2007

YouTube Creates New Ad Models as Viacom Woes Move Forward

A little bit of interesting wrap-up on the YouTube front as well, based on some unfolding stories throughout the month. I was interested in the continuing fallout from the Viacom/Google lawsuit based around YouTube, as I've blogged about several times.

When I first wrote about the topic, I was concerned with the ways in which the community of YouTube was getting lost in the corporate structure for the business model as the lawsuit moved on, with no distinguishing between YouTube the group of users and YouTube the business. I wrote, "What's missing is the fact that YouTube is not the entity posting this content--it's the fans, fans who see quoting from these shows and sharing their favorite moments with each other as part of expressing their love for these programs." See more here, here, and here.

Continue reading "YouTube Creates New Ad Models as Viacom Woes Move Forward" »

August 23, 2007

Free Market and Copyright

Another piece that I wanted to make it a point to respond to in my flurry of blog updates today comes from Steven Lipscomb. For those of you not familiar with Lipscomb, he is the founder, CEO, and Director of the World Poker Tour, whose content my friend John Morris is addicted to, including buying it on PPV.

Lipscomb wrote a recent commentary on the TelevisionWeek blog, pointing out how China demonstrates the future of capitalism because it enforces the rules of the market better than the United States.

The paragraph that caught my eye in particular? "Free market advocates should agree with this proposition. Either we abandon things like copyright ownership entirely... or we enforce it. Today we have a system that rewards the cheaters and discourages ethical behavior. That simply cannot be the capitalist system we desire."

Continue reading "Free Market and Copyright" »

August 16, 2007

New Site: To Aggregate or Not to Aggregate? (1 of 4)

"New Site" is not new. The joint, billion-dollar, working-titled venture between NBC Universal and News Corp. was announced almost six months ago. Late last week, however, The New York Times reported that Providence Equity Partners, a "media investment firm," bought a 10% stake in "new site" for $100 million.

In the next four posts, I will first do a quick analysis of NBC's current distribution strategy, then look at each of the two problems facing the networks, and finally examine why NBC has partnered with FOX to ultimately address the question: "To Aggregate or not to aggregate?"

So, why is NBC, which already has a popular network website partnering with FOX, which doesn't, to spend $1 billion (now effectively $900m) on "new site," and why is Providence contributing $100 million dollars to the effort?

Continue reading "New Site: To Aggregate or Not to Aggregate? (1 of 4)" »

C3 Team: DRM, Hypermasculine Soaps, and Gender and Fan Studies

In addition to all that we've been covering here on the Convergence Culture Consortium blog, there have been some interesting pieces written recently on the blogs of some of our consulting researchers as well that I'd like to point the way toward.

First is a recent post from C3 Consulting Researcher Rob Kozinets, over at Brandthroposophy, his blog on "marketing, media, and technoculture." In a post entitled What Does DRM Really Stand For? Whack-a-Mole!, Kozinets thinks back to a conversation with an executive from the music industry in a class he taught back in 1999, talking about early MP3 players, and his own conversations with students over the years about file sharing and digital rights management, for both music and movies. He concludes that "entertainment companies haven't even come close to getting it. When they do, they'll learn to work with the trends and not against them. That's going to be an interesting day."

Continue reading "C3 Team: DRM, Hypermasculine Soaps, and Gender and Fan Studies" »

August 15, 2007

NBC's Didja To Launch Alongside the New Site

Tomorrow, Eleanor Baird will be providing an in-depth look at NBC's current repositioning of its online content, through its launch of the New Site venture in particular. I wanted to preface that earlier today by pointing toward what we've written about previously regarding New Site, as well as pointing out another new venture launched by NBC that has been getting some press lately.

That new venture is an online channel made up entirely of advertising, where the ads are not just something to support the content, but content themselves. Our partners over at Turner Broadcasting were trendsetters in this regard, with their channel focuses particularly on humorous commercials called Very Funny Ads.

Continue reading "NBC's Didja To Launch Alongside the New Site" »

August 1, 2007

Pirates vs. Ninjas: Valuing Fans and YouTube Users

Is copyright infringement enforcement across the board the best strategy for content producers? Or, would enabling some illegal sharing actually provide a benefit? The developments in the last week or two in the various lawsuits are indicating to me that a desire to stamp out and punish piracy is trumping the potential benefits letting users push content quickly and unfettered through social networks and other "web 2.0" sites, the most compelling benefit of these sites and a key means for fans to add value to media properties. The desire to adhere to traditional revenue models, boilerplate rights agreements and, perhaps most of all, an inability to qualify the value added by YouTube users, may ultimately be more of a hindrance than a help to producers in promoting their product.

Startling revelation? Perhaps not, but it's worth considering in the context of this week's developments.

Continue reading "Pirates vs. Ninjas: Valuing Fans and YouTube Users" »

July 31, 2007

Followups on Coverage of Gambling, Viacom, Decency, and Fairness

I wanted to spend a few minutes this afternoon going through some recent news that provides updates for issues I have written about continually here on the blog. These include the Second Life gambling issues, the Viacom/YouTube case, and the indecency and Fairness Doctrine bills currently making their way through Congress.

1.) Gambling in Second Life. Word has officially been released that Second Life has shut down gambling inside the virtual world. I found out about it from Raph Koster's blog, as the new policy was released through the Second Life blog. The blog's Robin Linden writes that, even though there is no official gambling service in Second Life, they are still required to operate under governmental laws that regulate online gambling.

Users on Raph's blog debate issues such as whether poker is a game of chance, whether Second Life is better off or not with the gambling gone, and what this might mean for SL longterm, especially if the door for government intrusion stays open.

Continue reading "Followups on Coverage of Gambling, Viacom, Decency, and Fairness" »

July 24, 2007

C3 Team Continues Analysis of Harry Potter Spoiler Controversy

Tuesday afternoon, and it's time to catch up on some relevant issues here on the C3 blog. One thing that has C3 and its consulting researchers talking is all the discussion flowing out the Harry Potter book release and concerns about spoilers related to it.

The release of Harry Potter and the Deathly Hallows has gotten a lot of people up in a stir. There are all the people who crowded Harvard Square on Friday night, or sites all across the country, although that created a fervor I've encountered before back in Kentucky and that echoed the recent "happening" that was the iPhone release. This is all about event-based marketing and the importance of the release in an experience economy.

But people online are talking almost as much about the unofficial releases as they are about the official ones, including the New York Times review that some people felt provided too much information, as well as online leaks of the book before the official midnight book release.

Continue reading "C3 Team Continues Analysis of Harry Potter Spoiler Controversy" »

July 18, 2007

Spoilers and Special Release Events: The Case of Harry Potter

C3 Director Joshua Green clued me in to a fascinating conversation taking place over on Bruce Schneier's blog regarding the leak of the final Harry Potter book online, with digital photographs of each page.

The debate is going in both directions. Schneier's take is that this is no big deal and that it does not really equal much of a profit loss. This perspective is that, since the people obsessed with finding a copy just to read it online a few days before it comes out in print will likely buy a copy anyway, and anyone particularly adamant with finding a free copy would have either not read it at all otherwise or borrowed a copy from someone else.

But, of course, this is also about scheduling and real-time deployment of content. The same question gets raised for television as we move more toward a non-linear method of television watching, with DVRs and television shows on DVD. As I wrote about last October, television is no longer the consensus narrative it once was because even if people watch the same series, they may be on a different season.

Continue reading "Spoilers and Special Release Events: The Case of Harry Potter" »

July 17, 2007

C3 Writing on Copyright and Fair Use

Joshua Green and I were sitting in his office yesterday, talking about copyright issues and how they relate to our own upcoming thoughts about a new environment of spreadable media, when the conversation shifted to fair use issues surrounding these debates.

Joshua's contention was that fair use issues are an implicit part of any facet of conversation about mash-ups, viral marketing, proselytizing, fan communities, or even convergence culture in general, and that, while talking about fair use is not necessarily something we will extensively focus on in our research, it is a part of many of the arguments we are making.

I concur that fair use discussions are quite important when thinking about issues of respect, and the prohibitionist/collaborationist modes of thinking Henry Jenkins writes about. Back in December, we featured a series of conversations about fair use issues in relation to C3 (see the posts from Jason Mittell, Ted Hovet, and Joel Greenberg), and I have been thinking about these issues recently in relation to my own writing about quoting, as opposed to piracy, when it comes to online video.

Continue reading "C3 Writing on Copyright and Fair Use" »

July 12, 2007

The Sharecroppers of the Digital Age: Remixing and Fair Use

One message has been emphasized throughout the bulk of our work here at the Convergence Culture Consortium, and throughout some of the writing by our director, Henry Jenkins, over the past few years, that the traditional model of prohibition in the media industries is being eroded by, and in our view should give way to, a more collaborative view of copyright ownership.

This takes into account a conversation that has been very important to C3 researchers, that of fair use. In his column this morning in The Washington Post, Lawrence Lessig writes that "the remixer becomes the sharecropper of the digital age." He admits it is an over-the-top metaphor but acknowledges that it applies an old way of thinking to new technologies and new consumer practices.

He doesn't mince words, writing, "Lawyers never face an opening weekend. Like law professors, their advice lives largely protected from the market. They justify what they do in terms of "right and wrong," while everyone else has to justify their work in terms of profit. They move slowly, and deliberately. If you listen carefully, sometimes you can even hear them breathe."

Continue reading "The Sharecroppers of the Digital Age: Remixing and Fair Use" »

December 3, 2006

Seeking Common Ground Between Media Educators & Industry on Fair Use

C3 provides a great opportunity to develop dialogue between media scholars and media professionals, something that has thrived in face-to-face meetings at MIT and elsewhere. While this blog seems not to have generated much dialogue and interaction across this divide (at least that I've seen), I offer the following commentary (both here and cross-posted on the newsletter) to provoke discussion, as it's a topic that needs input from multiple sides, and thus I encourage feedback and commentary to flow from these thoughts.

If there is one issue where I feel the perspectives of academic researchers and educators greatly diverge with the interests and policies of the media industries (at least as publicly stated), it is copyright. The media industries have been aggressively framing their copyrights as owned property, demanding control over all uses and successfully lobbying for legislation to protect ownership rights over all others. Media scholars are typically both copyright holders and active users of copywritten materials, so we can (ideally) see the perspectives of both creators and users - I certainly want to protect some rights to my writings, ensuring proper credit and (modest) compensation for using my work. But I am a dependent practitioner of fair use, the right to use copywritten material without permission for certain purposes such as criticism, parody, and education. Without fair use, I could not quote a book in my own research, show a clip from a television show in class, or assign students to make parodies of movie trailers, all practices that I see as integral parts of my role as a media scholar.

Traditionally, courts have protected such fair use rights over industry objections, but Congress managed to legislate around these rights in 1998 with the DMCA - this act mandated that users could not legally circumvent copy protections (like the DRM system on all commercial DVDs), even if the purpose was protected by fair use. As the film and television industries have switched to DVD as their only format, consumers were denied our fair use rights to make clips for educational use, backup discs in a personal collection, and create parody videos, escalating the hostility between media users and owners. As an educator, this restriction effectively says I can only teach material following the limits dictated by DVD technology. Thankfully, the U.S. Copyright Office last week issued a ruling (which I blogged about) allowing film & media faculty to override DVD protections to make in-class clips - a great allowance, but still one much more limited than fair use.

Continue reading "Seeking Common Ground Between Media Educators & Industry on Fair Use" »

June 25, 2006

Further Reflections on YouTube vs. RIAA

Henry Jenkins wrote this followup post to the piece reprinted here yesterday regarding YouTube and the RIAA on his blog:

University of Chicago law professor Randy Picker was nice enough to pass along a link to what he has written -- from a legal perspective -- about the potential threat which the RIAA may pose to those folks who want to post lip-sync or karaoke songvids on YouTube:

For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public's knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube.... this is how we pay for music in the real world: different uses, different prices, and until we change the law and come up with a better way to pay for music, you should assume that the music industry is going to show up one day and knock on YouTube's door.

I don't pretend to be a lawyer so my views on the law should be taken with a grain of salt. I am pretty sure though that Picker is correct that the RIAA is almost certainly well within its legal rights to take action to shut down this use of its music via YouTube.

That said, I feel that we should be paying closer attention to that "persistent gap between actual law and the public's knowledge of that law and frequently, perceptions of fairness." True, ignorance of the law is no excuse but a democratic state should always be concerned if the gap between the law and the public's perception of fairness grows too great. (And I would suggest that gap is growing hourly at the present moment).

Continue reading "Further Reflections on YouTube vs. RIAA" »

June 24, 2006

YouTube vs. The RIAA

Here's another post Henry Jenkins asked that I port over from his blog because of its relevance to media convergence and YouTube which we've blogged about several times:

This is another in a series of posts highlighting trends which threaten our rights to participate in our culture.

According to a report published in the Boston Phoenix this week, the Recording Industry Association of America (RIAA) may soon take aim at the amateur lip syncing and Karaoke videos which circulate on YouTube. Spokespeople from the RIAA, which has never been slow to assert the broadest possible claims on intellectual property, have so far not confirmed the claims that they will be using their power to force YouTube to take down such videos.

Participatory Culture's Most Powerful Distribution System
YouTube represents perhaps the most powerful distribution channel so far for amateur media content. More than 6 million visitors watch a total of 40 million clips per day and upload another 50,000 more, according to the Phoenix. Some of that traffic is no doubt generated by content grabbed from commercial media -- including a fair number of commercials which are virally circulated, music videos and segments from late night comedy shows, strange clips from reality television, and the like. But a good deal of the content is user generated and this content is generating wide interest.

Many people will have seen the footage of the guy who went a little extreme with his Christmas tree lights last year or, in regards to this current issue, some of the videos of pasty-faced and overweight people singing off key versions of their favorite pop songs -- often with demonstrably limited comprehension of the lyrics. Many of us had argued that earlier file-sharing services such as Napster provided an infrastructure for garage bands and the like to get their music into broader circulation but there, the illegal content swamped the legal and made it hard to support this case. With YouTube, there is no question that some of the most interesting content comes from grassroots creators. Via YouTube, what were once home movies are finding a public -- some coming to appreciate real creativity, some there to gawk.

Continue reading "YouTube vs. The RIAA" »

January 12, 2006

Lessig on Second Life Jan 18

CC activist, IP lawyer and Internet scholar Larry Lessig will make an in-game appearance on Second Life next week. He has had a customized avatar kitted out for him and there will be virtual books for him to sign.

Date: Wednesday, January 18, 2006
Time: 5:30PM - 7:30PM Pacific Standard/Second Life Time
Place: Borrowdale/41/56 (the Pooley Auditorium) cute avatar pix and more details.

December 15, 2005

Digital books and intellectual property

For those of you who have been following intellectual property issues, some of the attention is being diverted from music and film companies and toward the digitizing of books and who owns the rights to those digitized copies.

If you've been following the news this week on these issues, you may have seen that, at the beginning of the week, HarperCollins announced that it will be entering actively into the digital book market by digitizing its active backlist of an estimated 20,000 titles "and as many as 3,500 new books each year," according to Jeffrey A. Trachtenberg and Kevin J. Delaney with The Wall Street Journal.

HarperCollins appears to see this as a preemptive strike after Amazon has already not only made money with the options for readers to search individual pages and see digital pages of a book they might potentially buy but has then charged $1.99 extra for customers to have access to digital copies of books it buys. HarperCollins questions whether retailers should have the ability to have that type of control over content owned by the publisher and are thus going to provide digital copies that will be available to Google searches, for instance, but will remain in a digital warehouse on the HarperCollins server.

This could provide great revenue opportunities for the company in the future and could be great ways to access titles long after the physical properties have gone out-of-print. In this way, there's no way that the decision won't be a benefit for all involved. However, all of the intellectual rights issues surrounding this decision are still very much left hanging in the balance, as players like Google, Amazon, and publishers continue to try and decide who has rights to what when it comes to digital print content.

December 10, 2005

Europe Proposes Terrible IP Precedent

(Via Atrios)

The New York Times reports that European lawmakers are proposing legislation that would criminalize patent violation and impose prison time on patent violators.

Tim Frain, director of intellectual property at Nokia, called the inclusion of patents within the scope of a European law "ludicrous." Mr. Frain, who is based outside London, advises managers at Nokia on the risks of infringing existing patents when they develop new functions for mobile phones.

Mr. Frain indicated that patent holders wanted protection, but not penalties of imprisonment as they test the boundaries of other patents.

"It's never black and white," he said of patents. "Sometimes third-party patents are so weak that I advise managers to go ahead and innovate because after making a risk analysis we feel we can safely challenge the existing patent."

He added, "But with this law, even if I'm certain the existing patent is no good, the manager involved would be criminally liable."

What he said. This move would absolutely have a chilling effect on innovation, especially given how poorly vetted most technological or conceptual/business practice patents are. Mandating prison time for accidentally trampling on a pre-existing patent (which may well be flawed) is an absolutely terrible idea.

December 9, 2005

Theft of signal?

The world of professional wrestling is full of hyperbole, so, when I heard a while back that former WCW World Champion and WWE superstar Diamond Dallas Page was going to sue Jay-Z for stealing the DDP hand signal that Page apparently copyrighted (a symbol of excellence since 1996, DDP's Web site claims), I didn't think much of it.

That is, until fellow C3 member Alec Austin sent me a link to a story from the New York Daily News about the lawsuit.

What to say? The issues that we are discussing always open up concerns for copyright infringement, but I haven't heard much about theft of hand gesture in the past. There are so few signals one can make with the hand that one would think that nothing is being done that hasn't been done before. But, if a hand signal has been copyrighted, hmm...

Any legal eagles out there who might be able to give some context to this? For the rest of us normal folk who have no clue how this might play out and what the precedents are, what is the implication on art and media if this case has some validity? Constant fear of doing anything because no one knows for sure what might be done before?

One person has a definite opinion, one that's pretty harsh in its stance against DDP and questioning the true origin of the hand guesture. Check out Nick Mamatas' response to the issue.

Perhaps even more interesting is the way the blogosphere is reporting the news--half frame the story that DDP is suing rapper Jay-Z (bloggers from the wrestling world or former wrestling fans), while the other half write that Jay-Z is being sued by a wrestler (hip-hop bloggers, no doubt).

December 5, 2005

NYU Fair Use Report

The Free Expression Policy Project of the Brennan Center of Justice (at NYU's law school) has just released a report titled: "Will Fair Use Survive? Free Expression in the Age of Copyright Control".

To get kind of technical, as C.E. Petit has noted:

Keep in mind that fair use is not a privilege. It is instead an affirmative defense to an accusation of infringement. (Unfortunately, neither the statute nor the courts are very consistent in treating it as such.)

That said, the (quite reasonable) concern expressed in the study is that the culture surrounding copyright and trademark enforcement is having chilling effects on the exercise of the right to free speech. Those interested in the legal issues surrounding fan-created content and intellectual property may find it worth a look.

November 20, 2005

Playing Hardball

C.E. Petit, in reference to a dispute in which the University of Alabama sued and blackballed a fan and booster of the school's football team over trademark infringement in his (very popular) paintings, writes:

Don't get the idea that I think this is "poor [alma mater]-- the law made them act like a bad guy" post. While I do think that the "defend it or lose it" aspect of trademark law is often a bit silly-- strike that; almost always a bit silly, and often counterproductive-- [alma mater] still blew it with its particular approach. A more-inventive approach might have involved hiring Moore as an adjunct professor of art with a specific exclusion of copyright in his contract, and paying him a dollar for teaching a seminar or studio class each year. Then there is no "market value" placed on the license that could muck up other actions. Too, the value of the museum's collection has no doubt been enhanced by the painting's increased value since acquisition; why couldn't the university consider that factor in tailoring a remedy? And so on.

Then he gets to the really interesting bit:

The ultimate problem is that too many lawyers-- and, oddly enough, an even higher percentage in art/entertainment/publishing law than I have encountered outside those areas-- are not very creative in resolving disputes. They push either a "boilerplate contract" or "hardball litigation." That isn't representing the best interests of the clients. It certainly isn't representing the best interests of the public. In that sense, I think art, in the broadest possible sense of the term, is "special"-- if only because of the public's First Amendment interests.

This is particularly true when dealing with fans and fan cultures, as taking a hardball approach with people who support and evangelize for your product and company (or school, in this case) is often totally counterproductive.

(Read the whole thing here.)

Snocap: the P2P killer?

So Shawn Fanning, the guy who created Napster, has come up with a new program called Snocap that aims to prevent peer-to-peer piracy of music files:

The heart of Snocap is its sophisticated registry, which will index electronically all the files on the file-sharing networks. "Rights holders," which are what he calls musicians and their labels, will use the system to find those songs on which they hold copyrights and claim them electronically. Then they will enter into the registry the terms on which those files can be traded. It could be just like iTunes - pay 99 cents, and you own it - or it could be trickier: listen to it five times free, then buy it if you like it. Or it could be beneficent: listen to it free forever and (hopefully) buy tickets to the artist's next concert. Of course, the rights holders could also play tough: this is not for sale or for trading, and you can't have it.

It's an interesting idea, although since only two P2P companies (Grokster & Mashboxx) have signed on so far, it's unclear whether Snocap will make a big splash or sink without a trace. Also, people who stick with the old version of Grokster will be able to continue pirating music without impediment.

Personally, I think the "listen five times free, then buy it if you like it" model sounds the most sensible, though as usual with anti-piracy schemes, it'll be interesting to see how resilient the DRM on the limited-use files proves to be.

November 17, 2005

DRM "an inept solution"

C.E. Petit, a prominent IP lawyer who's represented Harlan Ellison in a number of piracy cases, talks sense over at Scrivener's Error:

The underlying difficulty is that DRM is inherently an inept solution to the basic problem, no matter how elegantly implemented; the problem extends far beyond limitations on (or expansion of) fair use. Instead, this is a matter of economics and price points.

This is a point that comes up again and again in studies of file sharing; people don't want to pay a premium for a CD with only one or two tracks they'll actually listen to. In addition, there's an issue of goodwill involved; when consumers consistently find themselves buying $14-$18 albums for one or two radio hits, it's not unreasonable for them to feel like they're being cheated.

Mr. Petit continues:

This points out the economic model for preventing (or combatting) piracy: The perceived quality and availability of the genuine article must substantially exceed the premium over the counterfeit [...] All of this implies that instead of DRM, the media giants need to take a close look at their pricing structures, accounting, release timing, and value added to physical products.

In other words, if you can give people positive incentives (worthwhile extras, the sense that they're not being ripped off) to buy your product instead of pirate it, they'll do so. Funny how that works.

Go read the whole thing.

Sony Recalls DRM-ridden CDs

After taking a beating in the court of public opinion for releasing music CDs which install DRM software that leaves computers vulnerable to viruses (which I blogged about in more detail here), Sony has not only halted production of CDs containing the program, but has bowed to consumer pressure and issued a recall.

How long will it take for companies to figure out that copy protection doesn't work? The problem with DRM technology is that if it's non-invasive, it can and will be cracked or circumvented-- and if it is invasive, you run into problems like Sony did, with people using it to cheat in World of Warcraft (on the one hand) and hackers using it to make viruses and malware impossible to detect. No matter how clever you get, you're going to have some piracy-- hell, you could tape songs off the radio long before Napster showed up.

To continue my 5 stages of grief metaphor from an earlier post, the RIAA and the music industry have moved past denial (their pre-Napster apathy towards mix tapes and expensive CD burners) straight into anger, and have stayed there for most of the last decade. Whether alienating their audience with DRM counts as anger or bargaining is debatable, but until people begin to come to terms with the new media landscape spawned by P2P, they're going to keep making the same mistakes over and over again.

(Hat tip to Lost Remote for news of the recall.)

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