World Fair Use Day Wrapup

from the don't-stifle-creatitivity dept

So I spent all day yesterday at Public Knowledge's excellent World Fair Use Day, which was a very worthwhile event. PC World actually has a nice summary of the day's discussions, and if you want some more detail, some folks at Public Knowledge were live blogging the whole thing -- so I'm not going to recap the details of what everyone was saying. What I will say was that it really was an inspiring event in many ways. There were so many brilliant content creators who are doing amazing things that skirt the boundaries (or just ignore them entirely) of copyright law. The creative energy in the room was infectious -- and it would be impossible for anyone sitting through some of the examples of the works created to say that what these people do wasn't "creating something new." But it went beyond just creating new stuff -- the artists in the room have created wonderful works of art, music, video and commentary that are at times hilarious, inspiring or thought-provoking. It's the type of creativity that copyright is supposed to encourage, not hinder.

But in that point lies the very problem. While the conference was officially about "fair use," one thing that became clear is that many of the creators have no idea if their works are technically legal. Most noted that they had not been sued (yet). Some paid attention to copyright issues, while others just ignored them altogether. Some had tacit approval from copyright holders. Others had nothing. And, since (as copyright defenders constantly remind us), fair use is not a "right" but a "defense" (and there are reasons why this isn't quite true), all people can do is offer an opinion on whether their uses were "fair" or not. We can't say for certain -- and that leads to a great deal of uncertainty, and in that uncertainty many other creators dare not tread. That is tragic. As great as the works displayed and discussed at the event, there are an unknown number of additional inspiring works of art that will never get created because people fear the legal risk or they've been taught false propaganda by certain industries that any use of their works must be "theft" and not at all a creative new work.

But it's difficult to see how someone could claim that a work like DJ Earworm's mashup (both music and video) of the top 25 songs from 2009 isn't an amazing new and creative work. Yes, it builds on the work of others, but it is very much it's own unique song:
Given all this it was incredibly encouraging to have the day started off with Rep. Mike Doyle -- who first spoke out about these issues three years ago when he introduced Gregg Gillis and Girl Talk to bewildered members of Congress -- making incredibly strong statements about why we need to encourage exactly this type of creativity. And while it was certainly nice to hear Congressman Doyle confess in his talk to not just reading Techdirt, but using some of what we discuss here to help shape his understanding of these issues, the key point that came out of his talk is that we need to be encouraging exactly this type of creativity -- and that Rep. Doyle appears ready to stand up for such things. Now he's just one member of Congress, and even he admitted that this is an issue that a very large number of Congressional reps don't know the slightest thing about. However, slowly but surely, more and more are learning about it and beginning to realize that the simplistic message of "piracy = bad" pushed by certain interests hides a lot more important issues that really do impact creativity and free expression.

So on the whole, the day was at times encouraging, inspiring and exciting. But it was also frustrating in realizing how little concrete progress has been made. Many of these content creators may still face lawsuits in the future. The amount of uncertainty is great -- and the political will to help them out may not be there. While it was great to see that we can likely add Rep. Doyle to the list of Congressional Reps who clearly understand the deeper issues here, it's still a very small list.

Finally, while I focused most of this post on all the content creators, since those were the ones who made the day so worthwhile, I did want to briefly mention the key point that I tried to raise on the panel I was on -- which is a point we've discussed here over and over again. In so many cases, what are described as "copyright issues" are not really copyright issues at all. Almost always, they're business model issues (there are some exceptions, but we can deal with them separately). The problem is that someone or some organization has become so used to relying on copyright as a crutch to provide them with a business model that they fail to realize they don't need crutches to walk, but can throw them aside and run with other, usually better, more consumer-friendly, business models. So when people present "copyright problems" it's always worthwhile to take a step back and look first to see if it's a copyright problem or a business model problem.
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Filed Under: copyright, fair use, mike doyle

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  1. icon
    The Anti-Mike (profile), 13 Jan 2010 @ 7:36am

    Re: Re:

    It's one of the legs of the _old_ business model that Mike is talking about. If they change their business model to something better, they won't need to depend on it any more.

    In the end, the "new" business models are still dependent on copyright and image rights, otherwise the universe will be flooded out with cheap band gear, effectively limiting the abilty of bands to sell "lottttts of t-shirts" and so on. Heck, licensing is 25% of the UK business, and that would dry up overnight.

    You have to think past the end of your (virtual) nose, to realize that the models put forth depend on artificial scarcities (limited edition crap) as much as real scarcities (concert tickets). Even in concert tickets, the scarcities are often artificial, putting the act in a smaller room to assure a higher price per ticket sell out, rather than playing the biggest room possibly to reach the most fans. Mike can explain how that works with his usual Econ 101 drone.

    Look at the video Mike posted. Whoever made it is obviously very capable of writing his own music, but _chose_ to use samples from all over the place as an artistic statement (a collage of sorts). That work would not have been possible if your rigid logic were followed, because for a small-time artist (possibly working out of his bedroom) seeking explicit permission for all those songs is nigh impossible.

    I looked at the video. It's proof that auto-tune and drum machines are now cheap, and that you can create a horrible waste of 4 minutes if you work really hard at it. The world would likely be a better place without that waste of bandwidth. It is just the worst parts of pop, the worst tools of pop, overused to the point of stupid.

    Remember that some of the most iconic artistic works of the 20th century are by "samplers and re-mixers":

    Yet this is a totally unique work, as the video shows. It doesn't matter the took, he took a live image and applied his "art" to it. It is neither a remix nor a "sample", as he created both the original image and the resulting art work.

    We should not let these stupid legalities impede on artists' creativity. It's bad for artists, and MORE IMPORTANTLY it's bad for everybody else who won't be able to enjoy their art.

    These stupid legalities are what the real artists use to protect their work and make a living, so they can afford to continue to be artists all their life. DJ Earwax or whatever his name is will just as likely be back flipping burgers or selling used cars in a few years based on this video, as it shows little artistic talent but plenty of knowing how to make a sample and run an auto-tune. There is little there new, if anything it is perhaps the best example of why there should be no fair use (or fair abuse) or other's works without permission.

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