Creating Technology for Social Change

You don’t need permission to create

Rebecca Tushnet, a law professor at Georgetown, founded the Organization for Transformative Works, a nonprofit focused on fandom. They were established to make a home for people who make non-commercial transformative works who face legal challenges and copyright battles.

People often assume that certain expression is illegal when it actually is not. When Rebecca first got into law, legal institutions and lawyers were just beginning to become aware of the internet. There was a fantasy of control and a notion that digital files would lead to an era of perfectly controlled content.

Rebecca investigated the legality of fan fiction and found that it is, indeed, legal. Legal questions surrounding the Further Adventures of Mulder & Scully have been mostly resolved. The writing that comprises fan fiction is fair use. [See the Center for Social Media’s Guide to Fair Use]

The new tension is the role of commerciality in these derivative creative works. Similar works existed in zines, which charged a small amount of money to pay for production and perhaps a moderate living. But the internet has brought new attention to the value of this incredibly creative world.

50 Shades of Gray is the most obvious example, where the author files off the serial numbers and republishes her work as an independent novel. The remaining similarity between 50 Shades and Twilight is the deep structure, which has never been protected by copyright.

The focus of the debate has shifted to video and, to some extent, music. You can’t really filter for fan fiction. You can, however, filter for songs and video clips. Copyright owners’ fantasy of perfect control resulted in Congress passing a law for digital rights management with no exceptions for fair use. The fair use protection was that the Copyright Office could make exceptions every three years. For the first few cycles, no major exemptions were made, leaving 

Peter Detourney at the University of Virginia successfully argued that film professors should be exempted to copy film clips (rather than make an entire lecture hall watch 6 minutes of FBI warnings). Broader exemption for commercial video makers. The technology used to rip these videos is illegal to distribute, but legal to use.

Quoting Ghandi: First they ignore you, then they laugh at you, then they fight you, then you win.
In 2009, we skipped right over ignoring, and went straight to the fight. Unlike normal laws, where you make your case, and win until Congress changes the law again, these are exemptions that disappear without a renewed fight.

The copyright office is now being told by content owners that their databases of selected film clips supplant the need for researchers to maintain clips. They’ve also allowed low-quality filming of a film for critical purposes.

YouTube tends to take down content first, and ask questions never. What can be done to convince Google to respect fair use?
We can counter-notify and create critical mass. It’s not clear that YouTube will remain user-friendly, especially around remixes. YouTube’s reports crow about the amount of professional content on the platform. Google’s in it for the users just so far as that helps Google. Many times that has converged with user interest, but the general trend on video sites now is towards professional content. If that’s the case, we may need to look towards torrents for remix purposes, and move to the video networks that are more friendly (although these networks get sued, too).

DMCA allows you to countersue if your work is taken down wrongly. Why doesn’t that happen more?
Counter-notifications are usually successful and the claim goes away. But when you countersue, there’s always a small chance that the content owner will throw down on the original infringement, in which case there’s a risk that the remixer could lose their house. The plaintiff needs to have a risk tolerance, and not everyone can.

Many memes online begin with an original inspiration and then gets transformed. What happens next?
Lawyers always have 2 answers: it depends, and you can always sue, but the question is, can you win? There are plenty of cases where it’s obviously fair use, but there’s not too much out there, because the cases are specific.

There are good arguments for non-organized activism. But certain areas of policymaking respond more favorably to 501(c)3 non-profits. Jane Q. Public could ask to testify in the DMCA hearings, but Congress is more likely to hear the established organization.

One of the things about being an internet organization is that it seems like we’re super huge because we have an amazing network of volunteers and we show up to testify, but we don’t have huge servers. In the long term, with video, we probably need torrents to distribute the bandwidth.

Asked about archiving art, Rebecca responds that the organization relies on volunteer coders who code what they’re interested in. So, if you’re interested in protecting art and can code, get in touch.

Italy has held Google criminally responsible for a video hosted on its site. Plenty of governments out there are willing to hold the provider liable. There has been convergence that, as long as they take down content upon being notified, websites can escape prosecution. This is the “safe harbor”

Tons of YouTube videos are captioned with “NO COPYRIGHT INFRINGEMENT INTENDED. PLEASE DON’T TAKE DOWN.” There’s a lot of ignorance around what’s allowed, and a lot of people who think a caption like this indemnifies them. Are we failing to teach fair use?
We’ve made no coherent effort to teach people about fair use. There are a bunch of MPAA-funded educational materials saying that everything anyone creates is instantly copyrighted, and they don’t mention fair use. EFF and others have tried to educate around fair use.

Non-commercial use has historically been legal, and, before the internet, didn’t even come to content rights holders’ attention. In 1984, the Supreme Court codified this when they ruled that home taping, for purposes of time-shifting, is legal, in large part because it is non-commercial. We’re looking to Canada as a leader in this, because the US is not going to be that leader.

Does revenue sharing on YouTube count as a commercial use?
Copyright law has a strange relationship to commerciality. A book isn’t considered commercial speech in defamation cases, even though it makes the author money. In copyright, if a work is advertised upon or sold, it is considered commercial.

The music people eventually figured this out. It took them a while and billions of dollars in losses, but they realized they had to get to a solution where people could buy individual tracks that would continue to work across all devices, and that has largely worked. There’s still plenty of copying that goes on, but that’s always been the case. The fantasy that digital files would end copying has been challenged.

We’ve also seen some moves backwards, like with Hulu saying that you have to have a cable subscription to view Hulu videos. This is a mistake. Megaupload shuts down, and within 24 hours these other services spike back up again, because people would like to see the television they’d like to see. Many of them, if they could go to iTunes and get the video they knew would be there five years from now, would do it.

the oatmeal takes on piracy vs convenience

Licenses don’t work. Fan fiction is generally invented by 12-15 year olds. You do produce it because humans are storytelling creatures, and we tell stories based on what we already know. The idea that we could set up as some sort of toll system that says, “Every time you dress up as Batman, insert quarter here,” just doesn’t work online. A lot of content rights’ holders think it can be done, but I don’t.

I’m a huge fan of services like Spotify because it actually is easier to do it legally than to pirate the song.
Yes, but the relative cost of media in other markets, like India, is priced ridiculously out of line with cost of living.

The Creative Commons model specifically addresses how you want thinks shared. But do you think it will ever be adopted by the large commercial interests?
It tends to be the authors, because they’re the ones who tend to be concerned with the attribution. Faceless Global Corp. doesn’t care about attribution, they care about the PR and a relatively stable form of income. I want to speak up for fair use: it doesn’t actually matter what the copyright owner says, there are protected reasons for fair use.