Category: IP in the Digital Age

ACTA: Globalizing the DMCA – by “Elie C”

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Arrr, YouTube! Where be my videos??

Although the public has been denied access to negotiations (note: RIAA and MPAA don’t count as ‘the public’), drafts of the ACTA’s internet enforcement section leaked online last week, providing a chilling glimpse into the covert negotiations among world leaders and the possible future of global internet policing. Introduced by the US Administration in 2007, the Anti-Counterfeiting Trade Agreement (ACTA) proposes making ISPs liable for content that subscribers transfer using their networks, forcing ISPs to “operate “automatic technical processes” to detect copyright-infringing activities.” While section 512 of the DMCA already establishes third party liability in the US, the ACTA extends the liability of intermediaries beyond notice-and-takedown to possible Deep Packet Inspection (bye bye net neutrality?) to the contentious three-strikes rule (which France passed in 2009, banning three-time accused file-sharers from the internet),  thus exacerbating and spreading shortcomings of the DMCA internationally – namely the E.U., Canada, Mexico, Australia, New Zealand, South Korea, Singapore, Jordan, Morocco and the United Arab Emirates.

The current digital gatekeeping model established by the DMCA promotes a ‘shoot now, ask questions later’ approach to handling allegations of copyright infringement. While the DMCA imposes the burden of proof on copyright holders and outlines the necessary elements to a notification of copyright infringement, the court found in ALS Scan, Inc. v. Remarq Communities, Inc. that copyright owners do not have to identify all infringing material (“imperfect notice”), thus shifting this responsibility to service providers. Although the complaint of infringement does not prove that infringement took place, the DMCA allows ISPs to takedown content without investigating whether the material was truly infringing before taking it down, thereby shifting the burden of proof onto subscribers.

The only recourse that subscribers have is filing a counter-notice of a “good faith belief that the material was removed or disabled as a result of mistake or misidentification…” Intermediaries risk losing their safe harbor if they do not take down infringing works whereas the consequences of wrongful takedowns amount to little more than disgruntled bloggers. In practice, there is no enforcement of fair use considerations prior to takedowns; section 512 of the DMCA explicitly imposes burden of proof on copyright holders, but third party provisions ultimately shifts the burden to subscribers.

Need to brush up on copyright law? Check out this video before it’s taken down…

As the amount of information online far exceeds copyright holders’ ability to monitor the dissemination of their works, they are becoming increasingly reliant on targeting internet hubs managed by intermediaries. In turn, intermediaries like YouTube are going “well above and beyond our legal responsibilities” by turning to automated technologies to keep up with this inundation of user-generated and uploaded content; its ContentID system enables copyright owners to automatically identify their works in YouTube hosted videos, and subsequently monetize, track or block the content. Technology that automatically screens for the presence of copyrighted material inevitably steamrolls over fair uses in favor of ease for copyright holders and intermediaries. As a standard rather than rule, fair use cannot be identified by an algorithm (real lawyers have enough trouble accomplishing that as it is) and technologies such as ContentID will further contribute to mass takedowns, leaving subscribers guilty until they prove themselves innocent.

Gatekeeping is the new Boston strangler – by “Brian W”

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In the early 1980s when the MPAA was trying to stop Sony from distributing the VCR, Jack Valenti was quoted saying:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

We all know that if anything, the VCR only helped the movie industry rather than destroy it. Today, it wouldn’t be much of a leap to assume that the MPAA—along with the RIAA, Viacom, et al—would again compare a new technology—YouTube—to the Boston strangler.

Similar to the initial reaction of the VCR, Viacom and other media corporations are pushing against new trends in content creation and distribution which seems to be creating a strange distance between their original intentions—to promote and profit from the media they produce. For instance, the band OK Go—the one that basically became famous when they released this video on YouTube—recently released a new album with a couple videos. However, this time around the record label disabled the ability for users to embed and share the video on other websites. Due to the popularity and viral quality of the first video fans were curious as to why the same feature that practically made the band  famous had now been disabled. Eventually, the band wrote an open letter to the fans explaining the situation, here is an excerpt:

See, here’s the deal. The recordings and the videos we make are owned by a record label, EMI. The label fronts the money for us to make recordings – for this album they paid for us to spend a few months with one of the world’s best producers in a converted barn in Amish country wringing our souls and playing tympani and twiddling knobs – and they put up most of the cash that it takes to distribute and promote our albums, including the costs of pressing CDs, advertising, and making videos. We make our videos ourselves, and we keep them dirt cheap, but still, it all adds up, and it adds up to a great deal more than we have in our bank account, which is why we have a record label in the first place.

Fifteen years ago, when the terms of contracts like ours were dreamt up, a major label could record two cats fighting in a bag and three months later they’d have a hit. No more. People of the world, there has been a revolution. You no longer give a shit what major labels want you to listen to (good job, world!), and you no longer spend money actually buying the music you listen to (perhaps not so good job, world). So the money that used to flow through the music business has slowed to a trickle, and every label, large or small, is scrambling to catch every last drop. You can’t blame them; they need new shoes, just like everybody else. And musicians need them to survive so we can use them as banks. Even bands like us who do most of our own promotion still need them to write checks every once in a while.

http://okgo.forumsunlimited.com/index.php?showtopic=4169

It seems odd to me that this would be the label’s solution to the problem. You would think based on the effectiveness of the original video and how widely it was shared the label would embrace this aspect of distribution rather than lock it up. OK Go argues that the reason they do this is because they need to make money via ads which doesn’t happen when the video is embeddable on other websites. However, I would argue that more often than not users watching embedded videos on other websites tend to end up on YouTube at some point within that session anyhow. Furthermore, allowing a video to be embeddable creates an opportunity for exposure via blogs, forums, and other social media. After all, their video for Here it goes again—which was embeddable—had “50 zillion” hits on YouTube so obviously users aren’t abandoning the original source when watching these embedded videos. Ironically, the letter ends with the source code to embed the video through Vimeo which doesn’t make a whole lot of sense to me. Anyone?

In the Viacom v YouTube complaint the main argument is that YouTube was intentionally making it increasingly more difficult for copyright holders to find uploads that infringe on their works because YouTube profits off of the popularity of these works via web advertisements. This claim ultimately led to the implementation of YouTube’s automated ContentID system.

It seems that this system goes completely against Judge Jeremy Fogel ruling that fair use must be considered before take down notices are sent in order to counterbalance misuse. Browsing YouTomb and reviewing Chilling Effects letters from the RIAA shows that these corporations are abusing their power structure to scare users out of what might otherwise be rightfully theirs. Furthermore, I’m curious as to how this algorithm works and how precise it is. What happens when an artist samples a portion of another artist’s song verbatim, legally? Is it possible that this technology would wrongfully take down the artist’s works? This all comes back to the basic principle that these situations are based standards and not rules. Only human beings can assess context and other factors that are less quantitative. Automated processes simply do not work and seem counterproductive to the artists—the group that these laws allegedly protect.

Public Domain Hell – by “Heather R”

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Lou Lumenick, the cheif film critic for the New York Post, recently blogged about a Zane Grey film called “To the Last Man”.  The majority of the article is analysis and praise of this obscure 1930’s Paramount film, but he also discusses the “Public Domain Hell”.  His discussion of the Public Domain is brief, but it is raises interesting questions about the nature of a (hypothetical) healthy Pulic Domain.

In the second paragraph of his post, Lumenick laments that “a significant number of titles that have fallen into that gray area many film buffs call Public Domain Hell.”  He doesn’t elaborate on that statement, perhaps because most of his readership fall into the “film buff” demographic.  Later in the post, however, Lumenick elaborates.  He explains that when a film enters the Public Domain it usually doesn’t get restored.  The film can be legally copied, so there are a lot of poor qualities floating around.  The studios can’t justify the cost of restoration, because once they restored the film it could be legally copied and distributed.  Lumenick’s interest is apparently in having high quality prints of obscure movies available, not having those films open to remix and reinterpretation.  Films that enter the Public Domain don’t get restored, so Lumenick would apparently prefer that they don’t enter the Public Domain.  Lumenick praises Paramount’s ability to reclaim the copyright to “It’s A Wonderful Life” and offer exclusive access to NBC, which justified the “considerable cost of restoration”.  Lumenick’s doesn’t analyze the merit of the Public Domain, he simply laments the fact that films in the Public Domain rarely get restored.  His post made me wonder how a healthy Public Domain would function.  If works were routinely entering the Public Domain, which ones would we value enough to restore?  Would we restore any of them?

It seems that the Public Domain would preserve those films that the public values.  If the public has access to them, and values them, then they can be catalogued and organized and protected from abandonment.  That may apply to the relatively easy process of scanning books, but it may not apply to films.  Scanning books is relatively cheap and yields a high quality copy.  The process of restoring a 35mm print is tedious and expensive, which makes it difficult to crowd source the way book scanning can be.  Perhaps the films would enter the Public Domain, only to be lost due to lack of preservation.

Lumenick argues that Paramount won’t restore films that are in the Public Domain because once they released the DVD of the remastered “To the Last Man”, it could be copied endlessly.  However, if Paramount, or anyone else, instead restored the film and made additional 35mm prints, they could still sell the physical prints to film buffs and museums.  This apparently is not enough incentive to restore an obscure film like “To the Last Man”, but what if the film in question was a Paramount classic like Hitchcock’s “Rear Window”? (interstingly, ownership of most of Hitchcock’s films, with the exception of Psycho, reverted back to him) If “Rear Window” had entered the Public Domain, and no high quality copies were available, would someone have restored it?  If Paramount hadn’t “rescued ‘It’s a Wonderful Life’ from PD Hell”, would it ever have been restored?  If works entered the PD on a regular basis, who would preserve them?  Would it be econcomical to preserve them?  Would we gain access to thier intellectual property only to lose them to physical degregation?

Traditional Remix vs Digital Remix: A Transforming Conception of Authorship – by “Paul R”

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In writing Hamlet, Shakespeare borrowed from Saxo Grammaticus. Are digital remixes any different?

(Note: this blog post grew out of a lively conversation on the cpsc184 email discuss list. Credit goes to Jacob Albert for pointing to the original article on the German author and starting the discussion.)

A few days ago, the New York Times reported on young German novelist Helene Hegemann, 17, who had made it to the bestseller list despite criticism over plagiarism, including lifting an entire page from another work without citation. While instances of plagiarism are no means unique, what made this case interesting is that while Hegemann apologized for not citing her sources, she also explained that she was part of a younger generation that freely remixes culture and information. On the discuss list, Elizabeth asked about the ethical questions of not citing and helpfully pointed to a Harper’s article by Jonathan Lethem that situates the act of borrowing from other authors and artists in a long historical tradition, and Brendan suggested that perhaps contemporary remixes should be understood within this artistic tradition.

To respond to this last point, I think there’s an important difference between traditional remixes from the past (i.e. literature, art, and everything else Lethem discusses) and the remix culture on the internet. It’s true that remixing is centuries old and artistically valid, but in the article Hegemann argues that there’s something about this digital generation which is distinct. The relevant question then is to ask is what is different about new technology that changes cultural attitudes about remixes.

I would argue that it is the conception of authorship that has shifted, transformed by the cultural networks created by new technologies. In the recent pre-digital past, the standard was that some defined person or group created a work and was considered the author of the work. Even if an object was cobbled together from many different sources, there was always some identifiable creator recognized as source. For example, even though Shakespeare or Burroughs or the Dadaists borrowed from other work, we still identify them as the authors of the original piece which resulted, and we understand that it is their genius and creativity which made something new out of the old.

Contrast that situation with cultural attitudes about authorship surrounding digital memes. When someone decides to make another lolcat or other kind of meme the user often posts anonymously and there’s no obligation to cite the original source–indeed the original author is usually obscure, unknown (nobody knows who came up with “I can haz cheezburger“) and most importantly irrelevant. What matters is not the sense of individual authorship but rather the self-referentiality of the community as a whole. As Alex Leavitt makes clear in an article on digital memes that Elizabeth sent out, memes only make sense in terms of “subcultural networks,” and identifiable authorship is secondary. Hegemann’s assertion that, “there’s no such thing as originality anyway, just authenticity” can only work in this digital context. In the pre-digital age, it would have been absurd to say that T.S. Elliott created nothing original because he took from other sources, and part the reason is that the concept of authorship was so enshrined.

We can use this distinction of conceptions of authorship to answer some of the ethical questions surrounding plagiarism. In the pre-digital age, it was more necessary to cite your sources, because those authors too were understood as being original and creative. Thus, not sourcing them was to appropriate their originality and therefore plagiarism. But in a digital memetic community, plagiarism doesn’t make any sense as a concept–if there is “no such thing as originality,” then there is no such thing as appropriation from others and further there is no assertion that the work is “your own.” In a memetic community, citation isn’t an ethical question because plagiarism cannot exist.

What is interesting with Hegemann’s situation, however, is that it actually doesn’t fall neatly into either one of these distinct conceptions of authorship–she borrows parts of both. On the one hand, the form she is using, the book, has a long tradition of valuing authorship. In our age, books are understood as the formal expression of a person or group of persons and it is hard to escape that (for example, even if you want to publish anonymously, you still usually would use a pen name). On the other hand, her conception of authorship has been influenced by digital communities (the internet, D.J.’s, Berlin youth culture, etc.) which do not necessarily value authorship and therefore do not place importance on citation. Thus, I’d argue that the reason that this example is so controversial is that it is a site where two conceptions of authorship are coming into direct conflict. Attribution is the locus of this conflict because it marks one’s allegiances–citing sources signals a traditional understanding of authorship, not citing signals a digitally influenced understanding of authorship.

Paul Ramirez

Crowdfunding and the Potential of an Infinite Public Domain – by “Brendan S”

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I first stumbled across the concept of ‘crowdfunding’ in the form of the site Kickstarter, a “new way to fund creative ideas and ambitious endeavors.” There are many similar sites (Fundable [unfortunately now closed], SellABand, Kachingle, and a host of others), all of which raise small amounts of money from large numbers of donors to encourage creation – art projects, albums, websites, and more. This method comes in varying flavors of generosity – users can give money in return for a future stake in the creative product, rewards designated by the creator, or simply a nice warm fuzzy feeling. This practice is similar to, say, a radio station pledge drive, but the powers of the internet have vastly redefined the scale, making it possible for individuals with great ideas to raise capital in order to create. In this way, it’s similar to the (super-old) idea of artistic patronage, but redefined and democratized.

In “The Public Domain,” Boyle relates Thomas Macaulay’s opinion that there are only two ways to remunerate authors: copyright and patronage. Macaulay rejects patronage out of hand, declaring that a system in which creation is subject to the whims of the elite is “fatal to the integrity and the independence” of the artist. The notion of crowdsourcing this patronage likely never occurred to Macaulay, as the technology to enable such a system has only recently become viable, but I think it presents an interesting and attractive third alternative.

Under the crowdfunding model, funding comes from people who believe in the potential of an idea to be made into a creative product; the implication is that a successful and popular work provides incentive to fund the next. It is a sort of patronage, but turns the system around a bit – rather than a patron directly commissioning a work, the creator ‘commissions’ their patrons – the ultimate self-promotion. If a certain goal isn’t met, the creator’s project may not get completed. What appeals to me about Kickstarter’s system, in particular, is that it personalizes a donor’s stake by offering rewards of low cost to the creator, but potentially high value for the donor (a customized song, a postcard, a signed print), giving it features of a barter system.

On his blog, Paul Watson discusses the basic features of a successful crowdfunding endeavor: 1) Build a base of true fans. 2) Free-up the abundant; charge for the scarce. 3) Continually engage with people who like your work. This is a fairly simple system – hard to make work in practice, of course, but so are current methods of selling intellectual property. In this model, those who pay do so because they care about your work and are invested in its quality, not because they value it only as a commodity.

Now, of course, to the public domain implications of this model: under a system where this were the norm for distribution, copyright as we know it would cease to be necessary; the public domain might even become the only domain. All creative works could exist in a commons, a shared cloud of resources for the entertainment, education, and inspiration of the masses – and material to be incorporated into the next generation of works. With artists preemptively compensated for their work, they wouldn’t have to carefully guard its distribution, but rather spread it to as large an audience as possible. Kickstarter’s multiple levels for support would act as a form of price discrimination, with high-level donors receiving non-monetary rewards for subsidizing a work’s availability to moochers. (Though the artist could, after being funded, offer the product through a traditional marketplace as well.) The only copyright measures necessary under these circumstances are along the lines of the ones those suggested by the Budapest Open Access initiative: control over the integrity of a work, and the right to be properly acknowledged (like the Creative Commons attribution license).

The parallel of this mode of distribution with the Open Access initiative is an apt one, if we consider creative products to inherently be a form of knowledge. These products are knowledge in that they increase our cultural literacy; they benefit both the individual, in providing a shared currency for communication and future creativity, and the public, in increasing collaboration, innovation, and understanding of the world.

I’m writing as an artist, not a lawyer or economist, so I realize that this system might not make sense to everyone. I would personally be satisfied with having enough funding to complete projects that interest me, and I think I could work in such a model. Many people (scientists, academics, even some artists) currently receive funding from public and private organizations to do work that is deemed important; it seems perfectly reasonable to enable people to give money directly to creators, bypassing largely unnecessary intermediaries and stimulating creation directly. If, as Boyle says, the public domain is undervalued, expanding it as much as possible seems to be the best thing we could do, for the greatest public good – not just wealth and ownership, but freedom to learn, use, express, and create.

I admit, many issues, including piracy, would still have to be resolved, but I think it’s significant that this system would put more power in the hands of an individual to acquire the resources necessary to sustain their creativity. One problem in the cultural landscape is production-end entities conditioning the viewer/listener/audience  to consume particular types of products based on their spectacle, popularity, etc. Whereas I have no guilt (though maybe a little shame) about downloading 2012 via torrent, I would willingly pay to support intriguing projects with the assurance that my money is going directly to the creator. The sales experiments of artists with established fan-bases such as Radiohead and Girl Talk show this model can work; crowdfunding opens it to unknown artists, with the above sites allowing new talent to be discovered.

The current prevalence of appropriating, recycling, adopting (or what have you) of copyrighted cultural materials points to both the necessity and inevitability of that use for modern discourse. Landes and Posner are correct that the public domain provides a “source of free inputs” for creation, but they fail to see that, in our digital age, anything and everything must be fair game. Crowdfunding of course won’t come close to solving everything, but I think it could help.

We are all remixers now – by “Brendan G”

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If you come to the Net armed with the idea that the old system of copyright is going to work just fine here, this more than anything is going to get you to recognize: you need some new ideas.

–Lawrence Lessig on ThruYou

With hundreds of thousands of videos uploaded every day, YouTube represents a vast resource for mashup artists, producers, and now even consumers to sample, remix, and invent new contexts for existing visual and audio works. Sampling and remixing has been in wide practice for decades now, but new end-user mashup tools are changing both the speed and exposure of the medium, as even relative amateurs are able to produce and disseminate remixes without complex software or technical knowledge.

There are already an increasing number of artists working exclusively from user generated, or amateur, content sourced from YouTube and other media sharing websites. An often-cited example is Kutiman’s ThruYou, a site built entirely from existing YouTube clips. The site’s design even references YouTube as seen here:

ThruYou

There are also artists such as DJ Mike Relm who use YouTube to remix both songs and video live. Although most of the examples I found seem to rely on a lot of pre-prepared material the concept of live djing with YouTube as your infinite record crate is a promising one.

In the past year, new websites have made this kind of remixing even simpler, allowing anyone with access to a web browser to create mixes of multiple YouTube clips on the fly. I was first made aware of this phenomenon through YouTube Doubler, shown here with a mashup of Usher’s Papers with the widely trafficked Man Goat meme:

A similar site, twoyoutubevideosandamotherfuckingcrossfader.com, provides the same basic functionality but allows the user to control the mix between the two clips. As these tools become increasingly sophisticated, it will become more and more difficult to police the Internet to the standard set forth in Bridgeport v. Dimension.

I believe sites such as YouTube Doubler would not be subject to copyright law, as they are merely linking to existing content hosted on YouTube. For example, if Usher’s record label wanted to remove his song from the mashup cited above, they would likely have to make their case against YouTube. And to be clear, uploading Papers verbatim to YouTube is not, and probably should not be, considered fair use. But the mashup of this content could be considered parody and therefore should be protected by the first amendment.

The issue becomes complicated, however, by the fact that the instance parody exists only on the end-users computer, where both clips are played simultaneously. Although each clip may be subject to copyright protection, it is through the resulting combination that a new, transformative, work is generated.

Fair Abuse – by “Zak J”

~ bradevanrosen ~ 1 Comment

It’s not likely news to anyone that graffiti and its amorphous offspring, “street art”, are and for years have been highly marketable aesthetics. While this long standing trend has produced much commercial collaboration with and imitation of graffiti and street artists, it has also led to some contentious use of existing works.

For example, Banksy, a widely recognized but still anonymous British artist is often imitated, if not simply reproduced without permission in an ad or on a product, as seen here:

(Above: stencil by Banksy and t-shirt design by Agui Design. Images and story found at youthoughtwewouldntnotice.com)

Of course, the work of many less famous artists is subject to similar use, like this stenciled work that was picked up for a club flyer. Here’s a t-shirt graphic apparently composed in part from a wall in Milan. Notice that the text in the speech bubble on the t-shirt has been changed to say “copy of copy”. A knowing commentary on their appropriation?

Considering these cases, I’m wondering if and how copyright applies to illegal work. US Code seems to say that graffiti, as an “original work of authorship, fixed in any tangible medium of expression“, has copyright protection. Is work created outside of the law also subject to it’s defense and support? If so, how are questions of fair use dealt with? Since arbitration requires a court, artists would have to appear, revealing their identity and admitting breaking the law. This, as well as the financial burden of such an undertaking, seems to be built in protection for any and all use of illegal creative work.

– – – – –

A separate but related thought regarding legal graffiti and street art: There may be an assumption by would-be reproducers that the work is illegal or that the artist is anonymous or unaware of copyrights. Here’s an article in the New York Times on that issue—a photographer made a book of images featuring graffiti murals without contacting or crediting the artists. Here’s a similar situation where a photograph of commissioned work by well known artist ESPO is being sold at Crate & Barrell. Just one more!

Mashup: A Fair Use Defense – by “Ryan B”

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Mashup, a style of music that combines samples from various songs, would appear to many to be the epitome of copyright infringement. In fact, a 2005 court case, Bridgeport v. Dimension, deemed the unauthorized use of even one second of a sample to be copyright infringement. Since mashup blends several samples over the course of any one song, it must certainly be copyright infringement. Right? Not so fast.

Judges do make mistakes, and no court decision is set in stone, so it is worth considering whether a legitimate legal defense could be made on behalf of the mashup artist. In establishing such a hypothetical defense, let’s turn to the fair use doctrine, which permits the unauthorized use of copyrighted materials under certain circumstances.

Fair use is a legal doctrine meant to protect works deemed valuable for society, often shielding works involving first amendment expression, such as parodies. When reviewing a fair use defense, courts consider such things as how “transformative” the work is, the substantiality of the portion used, and the effect on the market for the original work. With this in mind, could a fair use defense be made on behalf of the mashup artist?

I will now show one reason why mashup could be considered fair use. While this particular argument will certainly not apply to all mashup music, I think that it at least demonstrates that Bridgeport’s blanket prohibition of sampling does not leave space for the sort of legitimate behavior that the fair use doctrine was meant to protect.

For this hypothetical fair use defense, let’s delve into the transformative nature of mashup music. To start, mashup artists frequently splice up samples while editing the pitch, tempo, and the mix of the original work. At the end of the day, however, samples are usually meant to be recognizable. As a result, the extent of these edits is typically held within limits.

Nonetheless, mashup can be incredibly transformative for another important reason. By pairing up samples from different songs, mashup can provide an entirely new context for the original works. In this way, mashup artists can provide critical commentary on those works, expressing their own perspectives on the songs being utilized. This can spur valuable conversations that construct new perspectives, a similar process to that triggered by an SNL parody, for example. As a result, mashup can yield the sort of first amendment expression that the fair use doctrine was meant to protect.

To see this argument in action, consider the mashup artist, Milkman’s song “All About It,” which samples the vocal track from Pitbull’s “Go Girl” (listen below; the Pitbull vocal track starts about fifteen seconds in to Milkman’s song). Pitbull originally blended his vocal track with an instrumental that had a dirty feel through its use of a base drum and a repeating flute line. Milkman, however, eliminated this “dirty” sound entirely by pairing up Pitbull’s vocal track with a 90s pop song, Real McCoy’s “Another Night.” The pop context that Milkman provides the Pitbull vocal track reveals how silly Pitbull’s lyrics really are. In this way, Milkman’s sampling of Pitbull’s song acts as a sort of critical commentary on that work, and therefore could be considered worthy of the type of first amendment protection that the fair use doctrine was intended to offer.

Pitbull – Go Girl


Milkman – All About It

Do mashups always provide critical commentary on the samples they use? Probably not. Nonetheless, the Milkman example does seem to show that a mashup could be worthy of fair use protection under certain circumstances. As a result, the Bridgeport decision, which deems all sampling to be copyright infringement regardless of the particular use, seems to be going too far.

The Disconnect: The law, Human Intuition, and the Internet – by “Matthew C”

~ bradevanrosen ~ 5 Comments

There’s a lot of talk about how copyright laws do not fit with the digital age – and a lot of the talk is quite convincing.  It does seem strange that with a few clicks a suburban teenager can commit six figure copyright infringement, or that artists like Girl Talk can be lauded as visionaries by some and common thieves by others.  It certainly is true that a disconnect exists, but I would argue that the greater disconnect is between human intuition and internet, not the law and the internet.   And this disconnect goes a long way towards explaining why our common sense notions of property fall apart online.

The internet is fundamentally beyond the scope of human intuition.  That’s because biologically, we’re no different from cavemen who didn’t even have a system of writing, let alone Facebook accounts to waste it on.  As a result, we don’t feel a natural connection to our actions online.  It’s like how snakes, which have always been around, make me shudder, yet the sight of a much more significant but modern danger like a gun provokes no such visceral response.  Similarly, antisocial behavior online does not provoke a guilty visceral response.  I can download songs and movies all day without really feeling too bad about it and I know that I’m not even close to alone on this.  Sure I know the intellectual arguments against those actions, but I don’t feel those arguments.  On the other hand, if I were to steal physical property, even from someone who had so much that my theft was insignificant I would certainly feel something.

The internet further disconnects us from our actions by means of scale and anonymity.  If no one knows what we’re doing and what we’re doing is only a tiny drop in an ocean, it becomes a whole lot easier to do all sorts of things that might not be so easy in the physical world in front society’s judging eyes.

The result of all this is that violation of property rights becomes so easy that it doesn’t feel wrong.  We don’t have to go through any of the steps that our ancestors did to commit many of the same crimes and our consciences are not naturally programmed to connect clicking a mouse with any sort of moral transgression.

But then what’s the point of all this?  It leads to the question of whether we can actually allow our intuitions about property to shape our laws and values.  On the one hand remix artists are violating property laws but they do so without any of the physical visceral experience of taking.  And, although I can’t remix, if I could, I doubt my conscience would put up much of a fight. This is where things get a bit dicey.  If it doesn’t feel like a crime, then shouldn’t we treat it differently? After all we have a criminal code that makes huge distinctions based on intent.  It becomes necessary to look at why the other side is so upset.

Obviously it comes down to profit. If record companies are losing profit because people are remixing songs then I believe they have every right to be mad.  But in fact I would say that they are not losing profits.  Not from the act of remixing, at least.  Record companies hold onto traditional notions of property that do not function in a digital setting.  They believe that because remix artists use their products without authorization, they must be subverting the system and therefore a part of the problem.  Girl Talk, as extraordinarily biased as he is, has claimed that he is constantly asked the source of some of his samples which naturally leads to people purchasing the source songs.  Or maybe they know this and that explains the lack of a lawsuit?

Of course my novice economic analysis is highly flawed and it is a product of my intuitions on the subject – intuitions which I’ve claimed are also flawed.  Ultimately I think the connection needs to be made between physical property and digital property.   Although we may not feel the effects of our online actions, they do have consequences in the real world.  The laws on the books ought to reflect the real world consequences of online action, not the feelings or self-interested opinions of actors.