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
    herodotus (profile), 14 Jan 2010 @ 6:17pm

    "I don't think you're making your case very strongly. Why does this cheapen the cause? All you've said so far is that it sucks. So basically all we can take from your comments up to now is that you're not interested in defending the fair use of this video because you think it's bad. Or maybe even (though this is a stretch) that you think it isn't fair use because it's bad.

    Marcus' point is that you not liking a music video has nothing to do with its fair use merit. So tell us what it is about this that hurts the cause of fair use. Is it that you think others will judge the value of the fair use principle based on how much they like this video, and that they won't like it? Or is there something more?"

    Actually, I was more detailed than you are letting on, but what the hell.....

    My opinion of this song is not the point. I don't like it, true, but I don't like a lot of things, most of which I never bring up in public.

    The point is that IT IS BAD PR.

    If you are trying to convince people of the vital importance of fair use, why are you making a mashup of the 25 most popular songs of the past year? It's like a commercial for VH1. Do we really want to defend the vital importance of every persons right to make and broadcast their own VH1 commercials?

    And does anyone really think that they are going to convert people who are on the fence about these issues with a video that consists of songs that the media is already saturated with? Why not use some of the thousands of orphan works that James Boyle is always talking about? Why not some of the millions of older recordings that are forgotten but still impossible to do anything with because no one can figure out who owns the rights to them?

    But in the end, it comes down to this: if I knew nothing about any of these issues; if I were completely ignorant about the harms caused by ever-expanding copyright law; if I had the exact same ignorant beliefs that Mark Helprin was rightly derided for having; if all this were true, and I saw THAT video, and someone were to say to me: 'See? great entertainment like this would be impossible without fair use', it would not only not make me a believer in fair use, it would do the opposite.

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