Taking Down the Takedown

In the panel on "Fair Use: Perspectives on Copyright and Fair Use for Digital Learning" at the Digital Media and Learning conference, lawyer Jason Schultz, tactical media expert Patricia Aufderheide, media literacy educator Renee Hobbs, and Virtualpolitik friend Steve Anderson made the argument for a vigorous defense of fair use.

Certainly, as an educator, it sticks in my craw that this video about Stephen Colbert and his mobilization of web fandom by a student in my digital rhetoric course has had its soundtrack blanked by YouTube. Anyone who watches the video's visuals or looks at the other content on this singer-songwriter's channel would see that this is a person interested in creative uses and original commentary rather than mere piracy and that his brief use of Colbert footage clearly exceeds any threshold for transformation and uses the clips in the context of criticism.

Schultz argued that more educators like me should be fighting back and should take advantage of the services of a pro bono lawyer from his own Berkeley clinic or from Stanford or the ACLU or the Electronic Frontier Foundation. Since after a takedown, parties have a10-14 day window to challenge and that sometimes it is possible to countersue over a malicious takedown thanks to the 512(f) provision in copyright law.

Although he admitted that the Shepard Fairey case might not be working out as he had hoped, that there was still the possibility to make good law, as in the so-called "dancing baby case" or Lenz v. Universal in which Prince's policing of the uses of the song "Let’s Go Crazy" was called into question, because he was supposed to consider fair use before sending out a takedown notice. Sometimes these cases involve what might be seen as obviously political forms of speech, as in the case of Online Policy Group v. Diebold, where the rights of Swarthmore students to publish incriminating documents from the voting machine company were defended in the name of the citizen's right to know and the judge's interpretation of how "reasonableness" is constituted, but Schultz argued that many forms of everyday activities and what I call "digital rhetoric" in the Virtualpolitik book should be protected.

For example, many wedding videos show a dance known as the "electric slide," which choreographer Ric Silver has energetically pursued copyright control over, which has led to many takedown notice sent to happy amateurs celebrating a new couple's nuptial bliss. Schultz describes how Silver was eventually persuaded to be less litigious and accept a Creative Commons license as an alternative that would assure him credit without inducing misery. Sometimes those who use takedown notices for purposes of harassment are even forced to apologize, as in the case of Michael Crook.

In the case involving MoveOn.org and Brave New Films that took advantage of the recognizability of Colbert's famed "truthiness" to promulgate alternative media about "falsiness," even Colbert mocked his parent company Viacom's copyright zealousness and how they were going after Robert Greenwald for nothing more than stealing a rhetorical device. Much like dolphins caught in tuna nets, after this case Viacom promised to operate a dolphin-style fair use hotline that promised to get back to content posters in three business days, which was tested by the creators of "Ten Things I Hate about Commandments."

As panelists pointed out it is corporations who are some of the most active content-appropriators, so there is considerable irony in seeing enforcement largely play out on the consumer level. Some fair use attorneys, such as Michael Donaldson, have developed a viable business model working with and for studios and using fair use in cases. For many times of "nonparticipatory digital media" there is no clearing of clips, and the Colbert Report and the Daily Show take their fair use privileges for granted. Many also talked about how the film Copyright Criminals would be used as a fair use test case.

Hobbs noted that there was a common misunderstanding among educators that students had no fair use rights. She asserted that fair use was for all citizens and did not just cover noncommercial uses. Apparently the group did not want to put the famed fair use "four factors" in copyright up on the board in order not to propagate the "priesthood" attitude currently dominant. During the question and answer session, an educator from MIT bemoaned the fact that "kids share interactive media," and he was forced to deal with the takedowns that resulted.

There was also a lot of discussion about Anderson's Critical Commons, which offers an open architecture system and no moderating. Despite the "close and cathected relationship to the film industry" at his own institution, where many students "imagine themselves to be future copyright owners," the database has grown. The terms of service for the project were written by a legal team at American University and then rewritten to be as comprehensible and direct as possible. Unfortunately, as Aufderheid pointed out, people in higher education concerned most directly with classroom use were not gatekeepers and that librarians, instructional teachnologists, lawyers and others making day-to-day policy in the university weren't necessarily serving the agendas of empowerment. As Aufderheide also noted, fair use is not media specific.

Virtualpolitik friend Nonny de la Peña had her own story to tell about getting licenses for airing content that involved a charge of $7500 for a New York Times article only shown for a moment on the screen.

Hobbs argued that far too often the role of "adding value and repurposing" was underestimated, although -- as with any form of expression -- educators might need to give instruction about "using just the amount you need to accomplish your purpose" in respecting both the rights of
the owner and the rights of the user. Starting at perhaps nine years old, many young filmmakers were "learning from grappling with experience." However, Hobbs observed that now that few classrooms were equipped with VHS, teachers had to cope with less pedagogical flexibility in the era of CSS encryption, According to panelists, teachers said "over and over" that "we want to be lawful."

Aufderheide said that more needed to be done with the "incredibly broad middle" between civil disobedience and compliance. The group agreed that the precedents set by music sampling with some of the "stupidest judges and worst decisions" had made examples of clearing into the norm. Thus the music recording industry had become "not a field where they use fair use" and not a good model for how today's digital users might use pieces from multimedia digital files to "comment" or "illustrate" or serve "incidental" or "archival" purposes. The Center for Social media has archived a number of "best practices" documents here. Hobbs has also had a role as a media literacy educator in developing best practices for her own field, which may include use in teaching a lesson, developing curriculum materials, sharing curriculum materials, creating student work, and sharing creative work among students. Hobbs describes this as work that "meets the transformative standard."

With cloud computing, many of the group's members worried that this "shackling of public and private" may make the copyright situation even worse and that students eager to participate in electronic portfolio programs might experience unintended consequences if their creative works were taken to be infringing.

Nonetheless, in the elevators afterward, there was some hopeful talk about the forthcoming decision to be made about extending fair use replication rights to educators more generally rather than just limit it to the current protected classes of film and media professors who had thought to lobby Congress in response to their work with the DMCA. In connection with the efforts of my colleague Karen Lunsford, I wrote a letter in support of the case for educational file-ripping, since discussion leaders showed a DVD movie of the opera Porgy and Bess in connection with instruction in the Humanities Core Course and using the MPAA suggested method of VHS recording in a dark room to capture key clips without taking up class with time-wasting copyright and credit front matter wouldn't make the critical subtitles adequately legible to students.