Beyond the Copyright Wars (UW-Madison, April 2010)


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While the copyrightists and copyleftists mirror each other's rhetoric, a middle way to challenge long and strong copyright exists in the movement to expand the utility of fair use.

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  • This is a talk about misunderstanding the problem about copyright as a “war” between copyrightists and copylefistists, and finding a better way to address the real problem of long and strong copyright.
  • One side of the “war” is driven by large copyright holders, who
  • believe copyright policy can protect them from collapsing business models.
  • They are afraid they’ll see this headline one day.
  • But their influence has been powerful for decades. Copyright holding companies were prominent in designing the 1976 copyright act, which codified many of their copyright claims. They also pushed hard for the Digital Millennium copyright Act, which make de-encryption illegal. They drove extending the length of copyright terms in 1998. They were persuasive in convincing federal officials to link international trade terms to long and strong copyright. They have also been influential in intimidating users with lawsuits and, much more frequently, cease and desist letters.
  • Their “educational” campaigns constantly represent copyright as a property right, and all copying as stealing.
  • Their rhetoric has four main themes.
  • Their representatives use dire language.
  • Jack Valenti invoked fear and criminality.
  • The other side in the “war” is far less powerful.
  • These are the themes of the copyleft; they mirror those of the copyrightists.
  • They do not have the economic or political capacity to affect legislation; rather they choose secessionist and protest tactics.
  • One proposal is to build alternative “copyright-light” spaces.
  • Pranksterism, a “weapon of the weak,” mocks strong copyright and strong trademark, but confuses the two and creates the impression that all one can do is be the clown.
  • Protest and civil disobedience is also popular on the copyleft, but this also leads to the impression that one must self-criminalize to act.
  • The language of the copyleft is alarmist and sometimes even apocalyptic. The most charismatic spokesperson on the copyleft has been Larry Lessig, who constantly reiterates that fair use is too small an escape hatch and unworkable; he hopes instead to mobilize a massive citizens’ campaign to rewrite copyright law.
  • The most charismatic spokesperson on the copyleft has been Larry Lessig, who constantly reiterates that fair use is too small an escape hatch and unworkable; he hopes instead to mobilize a massive citizens’ campaign to rewrite copyright law.
  • Larry Lessig is one spokesperson of the copyleft. The most charismatic spokesperson on the copyleft has been Larry Lessig, who constantly reiterates that fair use is too small an escape hatch and unworkable; he hopes instead to mobilize a massive citizens’ campaign to rewrite copyright law.
  • David Bollier is a popularizer of the secessionist strategy.
  • When the copyleftists suggest reforms, they are reforms that ignore political realities.
  • The copyrightists and copyleftists share some rhetorical and ideological tropes.
  • This not a “war,” but a moral panic, and it is unproductive.
  • What is the purpose of copyright?
  • We need balance in copyright policy because you need to access culture in order to make more of it. Besides in the US if current copyright holders act as absolute arbiters of their material then they are censors and the government with its policies is enabling them, which makes copyright policy unconstitutional.
  • At the same time, there are balancing features that work.
  • We do have a problem about long and strong copyright.
  • Fair use and copyright exemptions generally are escape hatches to the owner’s monopoly in copyright.
  • Copyrightists disparage fair use.
  • So do copyleftists.
  • But judges love it, and they do have a pretty consistent way of analyzing whether something is fair use.
  • Even though judicial decisions are consistent, there aren’t many of them, and also any one person making a judgment call is out on a limb.
  • Individuals need to take refuge within communal expressions of appropriate fair use intepretation, within their community of practice.
  • Our website has all the documents generated by this project, including all the codes of best practices.
  • In the project, we worked with communities to define the situations in which they need to employ fair use, and to describe how they employ fair use within those situations.
  • Documentary filmmakers defined their problems with using copyrighted material, and discovered manifest self-censorship.
  • They designed a code of best practices in fair use, through their five national organizations.
  • There was dramatic and immediate effect.
  • Teachers came to us because they had a common problem whenever they taught using popular culture, and especially when they taught “media literacy”—criticism and analysis of popular culture. Once again we conducted research, and discovered teachers were overcomplying, avoiding teaching with this material when they used it, closed the classroom door and swore their students to secrecy. Used bad or inadequate material, e.g. making up their own ads to simulate common advertising. They too worked through their organizations to determine norms of interpretation, and again a legal advisory board looked over their work. The Ford Foundation paid for this.
  • They also saw dramatic change in practice.
  • When YouTube was bought by Google, Viacom sued YouTube for copyright infringement. Free speech advocates were concerned that any settlement could preclude fair use. We worked with Ford Foundation money to conduct research to identify the actual practices on online video sites of makers who use old work to make new work (e.g. mashups, fan videos, vids, remixes, recuperated video, material posted as an example of an issue that the poster wants to discuss). We found nine kinds of common uses. But there was no reachable “community” to convene through associations. We then convened electronically a group divided into fair use-friendly lawyers and DIY/new media/fan culture cultural studies experts, to construct a code of best practices. They worked over four months to establish a common understanding of 1) current practices 2) legally viable ways to phrase these practices 3) limits of fair use for these practices.
  • The code defined situations in which fair use applied, and described limitations.
  • Other groups are now developing and have developed codes of best practices in fair use. In each case, it changes practice. Fair use has become important in business, as codes of best practices become guides to more rationale business practices.
  • We are now working with research librarians, the largest and most influential group so far.
  • The utility of fair use is growing.
  • Some copyleft organizations are now turning to fair use.
  • Large businesses that depend upon fair use have demosntrated with economic reports the need to protect fair use in order to protect the 17 percent of the US economy—and the fastest growing part—that depends upon it.
  • There are growing constituencies within the nonprofit world.
  • The rhetoric of fair use does not invoke any warfare analogies; balance is the key concept.
  • The leader of the movement to restore fair use, Peter Jaszi, has two common sayings.
  • Scholars have opportunities to participate in this constructive approach.
  • Beyond the Copyright Wars (UW-Madison, April 2010)