Room if One's Owned

Lawrence Lessig was unable to attend this weekend's panel on copyright issues at the DIY Video Summit, but there was still a dynamic duo on the issue nonetheless.

Fred von Lohmann of the Electronic Frontier Foundation emphasized the role of political remixes on YouTube and why those remixes should be Constitutionally protected as political speech, regardless of the incorporation of copyrighted material or the disregard of the specific provisions against circumventing copyright protection systems in the DMCA and other forms of legislation. One of the first cases that the EFF had to defend involved JibJab's much-publicized This Land video from the 2004 election, which used a song that turned out to be in the public domain. Ironically, as this panel pointed out, JibJab became a copyright plaintiff against the makers of this video, which originally included a few seconds of JibJab animation that mocked the president.

For more adaptations of this particular work, you can check out the version I prefer, which uses conventions from silent film in its remixing of the Kanye West outburst against the Bush administration during the aftermath of Hurricane Katrina. As Yochai Benkler pointed out this work combines The Legendary K.O. with Kanye West with Ray Charles in ways that fit James Boyle’s musicological narrative of copyright, borrowing, and culture.



Von Lohmann argued that some of the most pointed critiques, such as the Vote Different video, which parodied Ridley Scott's classic "1984" Apple ad, use brand identities -- and their subversion -- to propagate political messages. He argued that these appropriations should also be considered to be protected speech if they represent satiric uses that corporate copyright owners would never license at any price, such as the gross out "Hurt" video by Sad Kermit.

The biggest laughs came for the showing of this subtle anti-Hillary parody about her "Inner Tracy" that juxtaposes images from Reese Witherspoon's performance in Election with stump statements from the only major female candidate in the race.



Von Lohmann's message overall was a positive one, informed by the Zeitgeist expressed in Jonathan Lethem's "The Ecstasy of Influence." His talk was "less about chilling effect," since the proliferation of these remixes show that regulation doesn’t appear to be working very well. Instead, he argued that "copyright law ironically made it possible," since this content could have never made it on the air and the relatively lax rules for Internet intermediaries under the DMCA freed content providers from the strict liability associated with TV and other broadcast devices, which he described as a "clearance culture" that he claimed was in decline. He argued that rather than monitor media-production with a "velvet rope" that only let a few in, the DMCA encourages a "bouncer approach" in which unruly media-makers who violate laws and norms are ejected from the webcast platform through notice-and-takedown procedures. In other words, "if you’re willing to be sued, you can reach an audience, which is a better deal that you have ever had."

He did, however express concern about "mechanized censorship" by automated filters, which he compared to setting a driftnet that could also catch dolphins. Von Lohmann argued that these technologies were "going to happen no matter what," and he also warned that legislation adding new provisions against bypassing DRM could become a tool for censorship, since the mere fact of rip occasions a fine regardless of how that content is incorporated. Panelists were concerned about the longterm consequences of "trusted systems" and "funky new rights" to creative production and civic participation. Von Lohmann argued that sampling licenses, which now have ten years of practice behind them, sometimes at exorbitant cost, could be seen as "both a bug and a feature."

Yochai Benkler described a somewhat darker narrative about "what freedom might mean and what video might capture" by taking a broader historical perspective, which he did for much of the conference. He began his talk by looking at The New York Herald and the jump in newspaper startup costs that reinvented newspapers to be not something generated locally by political parties but corporate ventures that operated on a business model. Although the message on copyright from Benkler was grim, his attitude about what he described as the decentralization of material and human resources represented important inputs of core economic activities. Thus, as he put it, "social action shifts from the periphery of the economy to a stable element at its core." To understand the significance of this sea change, Benkler looks back to the rise of the administrative state and the emergence of the rationalism of the state.

In the era of Wikipedia, Benkler laughed about the fears that print encyclopedia makers had about Encarta a mere decade ago and how 900 stubs ultimately transformed how average citizens access reference works. Before the Internet, Benkler argued, non-market decentralized action was impossible, although "social sharing" could now be part of a matrix that included traditional elements from price-systems, firms, and government or nonprofit institutions. He claimed that if YouTube resists authority, "that is a good thing," although he agreed with Alexandra Juhasz that it might make it bad for teaching.

In addition to examples of participatory culture that have gotten a lot of attention from Scholars of digital culture, such as the contributions of visitors to The Daily Prophet or Learning to Love You More, Benkler pointed to Kaltura as a prototype for collaborative video production, which can be embedded for Wikipedia. As examples of the potential for non-proprietary rich media production, Benkler showed entries about Venice carnival and Tompkins Square Park. Although Kaltura is currently Flash-based, it hopes to eventually based on the open source free software video format for the web, Gnash.

Benkler also emphasized the whistle-blowing potential for distributed digital media and pointed to Talking Points Memo, Porkbusters, and the Sunlight Foundation as examplars. He argued that the fact that this video content is embedded, often makes it difficult to understand its full impact as a communicative artifact. In this context he mentioned the potential Macaca-moment of John McCain on the campaign trail, which was released on YouTube as "Bomb bomb bomb, bomb bomb Iran."

Benkler argued that this push back is political and is being fueled by utter disdain for law by millions of people, combined with increasingly strong social sharing practices in the Creative commons model. As an illustration he showed a chart with those who filed public comments and amicus briefs in the Grokster case, and he pointed out that the annual revenue picture has been much better for the Pro-Grokster corporations than for the Anti-Grokster ones.

The closing presenter was Fred Graver who discussed the Remix America project that would make a database of materials available, which could include works by John Adams, FDR's "four freedoms" speech, and content from the Bill of Rights to form "America's playlist," which would be available for remixing. Although the project is funded by Norman Lear, organizers anticipated that the works created will be multipartisan. Organizationally, they plan both to use Kaltura and to develop a partnership with YouTube. Apparently they have yet to approach the famously litigious estate of the heirs of Martin Luther King who are known for prohibitive licensing fees and pursuit of infringers.