Larry Lessig - The Voice of Reason

Lessig giving a TED talk on Remix Culture

Lawrence "Larry" Lessig is a law professor at Harvard Law School. He formerly taught law at Stanford Law School and founded its Center for Internet and Society. Lessig is a founding member of Creative Commons, which seeks to expand the range of creative works available for others to build upon legally and share.

Lessig has written 6 books so far. Most of his books deal with issues surrounding freedom of information sharing on the internet, how to understand and manage computer code, the purpose of copyright law, and the culture of remixing (also known as 'RW' or Read-Write culture). This final issue is covered in Lessig's aptly titled 2008 book, Remix: Making Art and Commerce Thrive in the Hybrid Economy, and is my main source for understanding Lessig's stance on media "piracy." It should be noted early on that Lessig is an outspoken liberal activist; on October 5th his new book came out, titled Republic, Lost: How Money Corrupts Congress -- and a Plan to Stop It, which has been credited as offering the manifesto for the Occupy Wall Street protesters. Knowing that, we can assume that Larry isn't too concerned with corporate profit margins and he is fiercely opposed to corporations lobbying or contributing to the campaigns of politicians so that they will push through the corporate agenda. This is an important viewpoint to note when delving into media law -- Lessig is fundamentally opposed to corporate greed, destruction, and control of government. Most if not all of the lobbying for tighter controls over copyrighted material is coming from the corporate content industry. Movie studios in the MPAA and Record labels in the RIAA are pushing for greater controls of media and harsher punishments for copyright infringement. While Lessig stands in opposition to the corporations, his ideology does not swing to the other side of the spectrum (he does not advocate Internet piracy); instead, he proposes a new, balanced approach to making sure artists get paid and new creators have plenty of material to work with.

John Philip Sousa, the famous marching band composer known as "The March King" took a trip to Washington, DC in 1906 to oppose the emergence of phonographs and the newly created recording industry. At his congressional hearing, Sousa stated:

"These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape."

Sousa wasn't opposed to gramophones or "canned music" because he thought it would affect his livelihood (in fact, he was pretty loaded); he saw this new technology as an end to the RW culture as music appreciators would become more and more just music consumers and this would give rise to a RO (Read Only) culture. His pleadings were mostly ignored as members of congress were hesitant to impose any "frivolous" regulation on this new technology.

It turns out that Sousa was right. Around this time, RO culture began to take off. Soon after the advent of the phonograph, technology in American cinema gave rise to the studio era. The content industry exploded, and competition became fierce. Phonographs and records were manufactured in droves while film studios owned and controlled their own movie theaters. With time, audio recordings changed from records to 8-track tapes, audio cassettes, and CDs. Films went from the cinemas to television to VHS tapes to DVDs. This was great for the content industry, since these types of media (especially the analog versions) were so easy to control. The content industry was a booming business that provided jobs for millions. However, by the turn of the 21st century, the growing sophistication of the Internet and computer hardware made controlling media (especially the digital versions) much more difficult. RW culture began to make a comeback, ironically because of the "infernal machines" that Sousa so opposed.

In the book The Production of Culture: Media and the Urban Arts, Diana Crane investigates how media is produced in national cultural industries. For the purposes of this post, I would like to acknowledge three interesting points that Crane explores to help us understand the control wielded by this cultural industry and the motivations that inspire innovations.

1. "The characteristics of the content and of the audiences are affected by corporate policies that in turn depend on levels of profit within." (pg 49) -- In other words, what the content industry does is guided much more by profit than anything else.
2. "Cultural industries are generally dominated by a few firms that control a large proportion of the market for cultural products. Organizations belonging to such oligopolies are less likely to innovate and more likely to adapt superficial aspects of their products in response to changes in market conditions." (pg 50) -- This book was written in 1992, and the media conglomerates have only been expanding since then. These days, even fewer firms control even larger portions of the market. And Crane is right; these firms (run by corporate executives, not artists, mind you) are much more likely to make superficial changes than pursue any true innovations for their products.
3. "In periods when these companies face increased competition due to loss of control over markets, they are forced to be innovative and to use less standardized content to sell products." (pg 50) -- This, to me, is the most interesting point. In 1992, film studios and record companies weren't really facing the loss of control over their markets that they are definitely experiencing today. It can be argued that the Internet and the resurgence of RW culture is forcing the culture industry to become more innovative. Some of their methods are effective (Netflix, Amazon video-on-demand, iTunes) and some of their methods are pitiful (3D Smurfs -- unoriginal with the added bonus that it gives me motion sickness). The point is, the oligopolies that have controlled our culture for nearly a century are beginning to lose their grip, which fuels innovation both within the cultural industry and in the ever-expanding ocean of user-generated content.

According to Lessig, digital technology is quickly changing the face of RO culture. In the days of analog media, copies were always of a lower quality than the original and lending meant temporary loss for the lender. This limitation of analog technology ("bugs" for the consumer, "features" for the content industry) allowed RO culture to thrive, and it reinforced rampant consumerism. With our current technologies, a digital copy of a film or a song is just as good as the original, plus it can be easily manipulated. Understandably, the record labels and film studios are freaking out over this and pushing for more stringent regulations on content. However, in 2003, Apple came out with iTunes. People were paying to download the music that they wanted, and in the first year over a billion tracks were sold. iTunes proved to the 21st century that RO culture could be preserved, at least in part, while utilizing the technology of the "infernal machines." With this example and the example of YouTube, Lessig states, "Digital technologies will shift expectation around access." As RW culture becomes more prevalent, the public will demand that more content should be available. As we see more and more, the content industry has in some ways adapted to the new technologies that they claim threaten their profits, actually giving them a new stream of revenue.


Lessig also talks about the value of RW culture, both in how it has manifested itself historically and how new technologies will enable more and more sophisticated means of expression. Lessig gives the example of writing; for hundreds, even thousands of years, writing was the only method by which everyone was able to contribute to cultural understanding. Lessig regards writing as democratized in this way. Writing was huge in RW culture because it has been understood that so long as a writer gives a citation for other works, the writer is free to quote any other writer for a separate work. Lessig makes the argument that quoting another writer in a book is fundamentally no different than "quoting" a film clip and adding it to a new film or "quoting" a song by including it in a YouTube video. Lessig says, "The principle is the same; only the sources are different." In most of the 20th century, making films and music was pretty much solely a professional pursuit. In other words, these forms of expression were not democratized like writing; not everyone could do it. With the advent of cheaper cameras, audio gear, and more capable technology, the means for anyone to become content creators (in film, music, and still with writing) has become widely available.

The Internet is an ecosystem full of constant feedback. RW culture rules supreme as users in exponential numbers consume, copy, paste, edit, comment on, or transform one bit of content into something new. Lessig gives the example of Sim Sadler, a filmmaker and YouTube user who re-cut a 2004 George W. Bush presidential debate, repeating the phrase "it's hard work" several times and then showing Bush say, "It's hard work which I really want to do, but I would hope I never have to -- nothing wrong with that." to make a commentary on Bush vacationing 42% of his first 8 months in office.

There are two big reasons that remix is good according to Lessig: community and education. Communities of remixers are alive and well on the Internet, with content creators showing off what they are capable of to everyone else. Lessig uses the example of Pokemon to point to the cultural norm in Japan of "Here's something, do something with it." This is very different from the much less creative American norm of "Here's something, buy it." Education is another (and possibly the key) advantage of remix culture. Lessig gives the example of several schools in inner cities that have had big problems with getting students to focus. By implementing a Media Literacy program and encouraging the students to make their own videos about the world around them, each of these schools have seen staggering improvements in attention, focus, and awareness of the students' culture. This is part of the "interest-based learning" method, and it has been wildly successful where it has been tried.

The most important point that I think Lessig makes in Remix is that everyone does it. We all remix, almost all the time. We talk, we write, we think, all based upon prior collective knowledge and some of our own experiences. We constantly use other people's words and visions to help us express our feelings. In a fundamental way, the new methods of remixing made possible by technology are just like the others.

Finally, Lessig offers us some important cultural lessons. When thinking about the issues surrounding RW culture, RO culture, and the Law, we should consider how each system enhances our society and how the law should reflect that.
RO culture: Makes it possible for us to have access (though often not for free) to the greatest collection of creative human artifacts; more culture is available more cheaply than ever before.
RW culture: Gives everyone the opportunity to create. In the past, writing was the main democratized form of amateur creativity -- now we have video, music, pictures, animation, etc.
Law: The law, as it stands now, hinders this ability to create. The youth will always remix, but for this remixing to be decriminalized and gain the support of important institutions, like schools, laws have to change.

At the end of the day, we need to understand that creativity is being stifled by the current copyright law system. Laws need to change and we need to be able to provide artists with appropriate compensation while allowing RW culture to thrive. The creativity that our technology has made possible for society is far too important to be stifled or criminalized.

I'll end this post with a video of Larry Lessig's TED Talk entitled How Creativity is Being Strangled by the Law

 

The Pirates Speak - Part II - Good Copy, Bad Copy

Good Copy, Bad Copy is a 2007 documentary film which attempts to explain the copyright debate within the context of peer-to-peer filesharing and modern "remix culture." Andreas Johnsen, Ralf Christensen, and Henrik Moltke -- who are all from Denmark, directed the film.

The film can be seen here for free. 

Chronicling a wide range of perspectives on copyright, the film includes the viewpoints of a DJ in Pittsburgh, various academic intellectual property experts and copyright lawyers in the United States, music producer Danger Mouse, the head of the MPAA Dan Glickman, pirated DVD sellers in Russia, the creators of the world's largest p2p tracker site The Pirate Bay, members of the "Pirate Party" political movement in Sweden, the founder of Creative Commons Larry Lessig, producers from the Nigerian film industry, and members of the tecno brega movement of Brazil.

The main message of Good Copy, Bad Copy is that there needs to be a careful re-examination of copyright law in order to establish a balance between what is beneficial to artists and what should be available for public access and to help future artists create. The film does not advocate piracy, but at the same time it attacks corporations that hinder creativity by placing too many controls on media.

Opening Remarks - Rep. Doyle

The film opens with footage from the 2007 House of Representatives hearing on the future of digital media. Representative Mike Doyle (D - Pennsylvania 14th District) tells the story of one of his constituents, in Rep. Doyle's words, "A local guy done good." 

"By day, he's a biomedical engineer in Pittsburgh. At night, he DJs under the name 'Girl Talk.' His shtick as the Chicago Tribune wrote about him is 'based on the notion that some sampling of copyrighted material, especially when manipulated and re-contextualized into a new art-form, is legit and deserves to be heard.' In one example, Mr. Chairman, he blended Elton John, Notorious BIG, and Destiny's Child, all in the span of 30 seconds."

 Girl Talk

Enter a young, nerdy fella who immediately makes a joke about how ragged his car is. This young man is Pittsburgh DJ Girl Talk, a music producer who heavily samples other songs in order to create new musical works. Taking the film crew back to his modest apartment, Girl Talk demonstrates how he takes various clips of copyrighted music and layers them to create a new song. He talks about his new album, Night Ripper, and notes that on the inside sleeve of the CD he gives thanks to every artist he sampled to make this album. Girl Talk comes back regularly in the film, serving as a sort of anchor, giving insights to the culture of music creation and the purpose of copyright.


To help clarify his stance on the ethics of sampling and remixing, Girl Talk explains,

"Everyone is bombarded with media enough that, I think, we've almost been forced to kind of take it upon ourselves to use it as an art-form. If people were passing out paints on the street for free everyday, I'm sure there would be a lot more painters out there. That's exactly what's happening right now with remix culture on the Internet. I hate that current laws are, in a lot of ways, inhibiting the flow of culture and music."

Girl Talk demonstrates how he uses two drum beats, the guitar riff from AC/DC's "Money Talks," and a vocal track from hip-hop artist T.I. to create a new track. He then talks about the trouble with legal forms of sampling,

"I don't know about anyone else, but I'd be happy paying royalties for every sample I put on a record. But that's not what it would be. To actually license a sample would cost millions of dollars, which I can't afford. If sampling could be this form of music that you couldn't make music [sic] off of because you'd have to give all your money away, that would still be cool because it would still be this new way to make music. In a theoretical world, if I could clear every sample and I had a million dollars or a billion dollars to do it, it would still take me 50 years to go through the legal hassle of figuring all that out. And that's just absurd."

Girl Talk admits that he does illegally download music sometimes, but he tries to pay for music whenever he can. He romanticizes about being a kid and going to record stores, hunting down the album he wanted, and listening to the album while reading the liner notes from inside the CD sleeve. He voices his concern that the newest generation of music consumers might not appreciate music in the same way that he does because these days people are less likely to be collectors of music and more likely to be casual observers, grabbing music passively through downloading, or from a stream or cloud.

P-Funk and NWA - an Academic and Legal Investigation 

The film next looks into the case of Bridgeport Music v. Dimension Films, in which the hip-hop group NWA was sued by Bridgeport Music for sampling 2 seconds of the Funkadelic song "Get Off your Ass and Jam" for their song, "100 Miles and Runnin." In the original case, a federal judge ruled that NWA did not commit copyright infringement. However, the U.S. Court of Appeals Sixth Circuit reversed the decision and found NWA to be in violation of copyright law. The court wrote:

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Paul V. Licalsi, the lawyer for NWA, argues that sampling is a key aspect of hip-hop music. He states,

"So many people have said that [the court's ruling] is the death nail for hip-hop music."  

Jane Peterer, from Bridgeport Music, shows the film crew around her office, points out the library of music that Bridgeport owns the copyright on, and has her assistant demonstrate how NWA took and manipulated three notes of a guitar riff off the intro to "Get Off your Ass and Jam," even though played back-to-back, these two pieces of music are barely recognizable.

Paul V. Licalsi explains the legal construct of de minimis (Latin - not concerned with minimal things) and how he felt that the NWA case was a perfect chance to file for de minimis use. Jane Peterer argues that NWA did not have a case for de minimis use, but she doesn't really explain why. She merely goes on to describe the court's ruling in Bridgeport Music's favor (not mentioning that this decision was made in the Court of Appeals). She reiterates that it is illegal to take anything from a recording to use it in another work. Also, she feels that doing so isn't creative. Apparently, she's not heard of Girl Talk.

Director of the NYU Department of Music, Dr. Lawrence Ferrara, called this ruling "extremely chilling," because this severe interpretation of copyright law sets the legal precedent that anyone who samples any work, no matter how little is used or how much the sound recording is manipulated, will be required to get a license to do so.

This case, as Dr. Ferrara points out, raises some interesting questions about intellectual property and copyright. Who really owns what? What is the purpose of copyright?

The Grey Album

In 2004, music producer Danger Mouse (probably best known as the skinny guy from Gnarls Barkley) made a mash-up album mixing samples of music from The Beatles White Album with vocal tracks from Jay-Z's The Black Album. He gave this work the fitting title The Grey Album, and passed it out (free of charge) to a few of his friends. Soon, the album had been uploaded to the Internet and within a few weeks it had been downloaded thousands of times. 

Dr. Siva Vaidhyanathan (Dr. V) is an Associate Professor in the Department of Culture and Communication at NYU, and is an outspoken opponent of current copyright law. Dr. V cites The Grey Album as "the best example of the ways in which copyright law undermines everyone's interest."

Danger Mouse explains that he has always been interested in mixing different genres of music, and the idea to mix these two seemingly incongruous styles of music just came to him one day. For Danger Mouse, The Grey Album was an art project. He admits,

"It's very cultural as well. You have a very white thing (Beatles) and a very black thing, (Jay-Z) and they can make beautiful music together. It's very corny and very cheesy...but that's what I'm trying to do. I'm trying to change people's perceptions about music and what you can do. Hopefully, I'm getting there."

 Dr. V illustrates the massive audience that Danger Mouse created with this album,

"Ultimately, it was probably the most successful album of 2005. If it had sold, it might have been the biggest hit of the year."

He then adds,

"Danger Mouse never made a dime. Nobody who copied or distributed the music ever made a dime. The Beatles never made a dime. Jay-Z never made a dime. The Beatles' lawyers must have made some money, but no one else did."

Dr. V's argument is that copyright laws -- which were originally intended to incentivize artistic creativity by granting exclusive rights on their work for a short amount of time (the original 1790 US copyright law stipulated 28 years maximum) -- have now become tools for massive corporate control of media, in the end hindering creativity (like Danger Mouse's) rather than promoting it.

The Pirate Party

Dan Glickman is the CEO of the Motion Picture Association of America. He discusses the constitutional foundation of copyright (which was the only substantive law in the original draft of the constitution), the amount of business the movie industry loses to piracy (he reports $6 billion in 2005), and how even though he knows piracy will never end, it is his aim to make piracy as difficult and tedious as possible. 

Stopping off briefly in Russia, a shopkeeper explains how pirated films come to be sold in his shop. He says that some European videotapes a film in the cinema on opening night, sends the first half to the pirates in Russia, and if the pirates are happy with the quality of the copy and the price is agreed upon, the second half is sent. He admits that Russia's economy is about 30 years behind the rest of Europe, so this elaborate method for getting pirated copies may be a bit outdated elsewhere. The shopkeeper details the extent of piracy in Russia, explaining that out of 2,000 shops in his city; only about 30 of them sell original products. 

In Sweden, the founders of The Pirate Bay explain the legal trouble they had over copyright law. The Pirate Bay is the most resilient filesharing tracker site in the world. These founders tell the story of how Swedish law enforcement officials, ordered by politicians who wished to appease the MPAA and avoid damaging international relations, raided The Pirate Bay's servers and took the site offline for a few days. The founders refused to cave in to the legal pressure exemplified with this raid and responded to it with apathetic actions and hostile discourse. The Pirate Bay recovered quickly, and due to a number of redundancies in the system, is now virtually impossible to take down.

In response to this raid, which some Swedish people described as "government betrayal," The Pirate Party was born. Founded by Rickard Falkvinge in 2006, the Pirate Party advocates only a few precepts:

1. Today's copyright system is unbalanced. Copyright laws should only cover commercial uses of copyrighted material.
2. Privatized monopolies are one of society's worst enemies. Patents are obsolete and should be abolished. Rather than recognizing the authority of pharmaceutical patents, we push instead for increased government support of research and development.
3. All attempts to curtail privacy rights should be questioned and met with powerful opposition. Anti-terror laws nullify due process and risk being used as repressive tools. 
4. Overall mission: To promote global legislation to facilitate the emerging information society.

 Falkvinge speaks on filesharing and copyright during a political event in Stockholm:

"Filesharing has pros and cons. The copyright infringement is a drawback, but if you fully get rid of copyright infringement the consequences are unacceptable. An old revenue stream for the entertainment industry is up against fundamental rights, such as privacy and correspondence, protection of whistleblowers and freedom of press. They think it is about one profession's right to get paid for its work, but this is not the issue. If you look at the advantages of filesharing, every citizen gets all knowledge and culture of the world at his fingertips. Each citizen is enriched in a way not seen since the advent of public libraries 150 years ago."

Dan Glickman says,

"There is a growing movement particularly among younger people in Europe and in the United States about 'collective is free,' 'free is right,' 'sharing of information should be unrestricted.' If that comes in conflict with copyright, so be it!"

Of course, Dan Glickman feels that the Pirate Party's take on copyright is completely wrong. At least, it is his job to regard any sentiment against current copyright law as completely wrong. What the Pirate Party contends is that even though there are unacceptable instances of copyright infringement -- made possible by modern technology -- the advantages of this technology and the access to knowledge and information it provides far outweigh any negative consequences of copyright infringement. The Pirates feel that you can't lock down the Internet because some people use it to share files that some companies want total control over -- the Internet is all about the free flow of information. To borrow from an old adage, it is like throwing out the baby with the bathwater.

Creative Commons

Larry Lessig is a professor of law at Harvard Law School, previously he taught at Stanford Law School, and he is on the founding board of Creative Commons. Founded in 2001, Creative Commons seeks to give artists another option in determining how others can use their work. Picking from the suite of different Creative Commons licenses, an artist can establish how the work can be re-used, if it can be modified, which license derivative works must use, and whether derivative works can be used for commercial purposes or not. This simple toolkit allows content creators to migrate from an "all rights reserved" climate to a "some rights reserved" one.

Larry Lessig explains,

"Unlike some people in this movement, I fundamentally believe in copyright and its need in the digital age. The only problem is that it has become so expansive and so powerful that it can begin to actually inhibit creativity. We all understand in the context of texts (books) that, you put the text out there, copyright protects you from someone competing with you and selling the original book, but it ought to be free for people to use and reuse as they want. Those same norms have got to begin to be part of film and music, and graphics as well. What we should do is just update the law to make the law make sense with these technologies, and there are many creative ways to do that and ensure that artists continue to get paid."

We will hear more from Larry Lessig in the next position paper blog, but it is important here to note that he represents a highly educated community of lawyers and media experts who feel that the best use for copyright is to make sure that no one takes and sells someone else's work as if it were their own. This is the main purpose of the original US copyright law -- to protect creators' rights to sell their own work, not to prohibit any and all use of that work for as long as (as it stands now) 120 years.

Nigeria

Ronaldo Lemos, professor of law at FVG Brazil, describes the movie industry of Nigeria:

"The Nigerian cinema is nowadays the largest movie maker in the world. The US produces 611 films per year. India produces around 900. Nigeria produces 1,200 films a year. The interesting thing is that all that happened without Nigeria having a copyright law."

Charles Igwe is a film producer from Nigeria. He explains how huge Nigeria is (as many as 150 million people) and the need for such a large populace to have a method of producing their own cultural expressions. He says that Hollywood sells sex, drugs, violence, and the glorification of taking life. "In Nigeria," he says, "we don't make movies like that. We make movies that have genuine human stories and real family values. We don't make movies that celebrate killing. We make movies that make a difference."

Charles explains that even though Hollywood occupies the highest end of the film market, this leaves room for Nigerian film producers to work within the lower sections of the market. He says, 

"My people say, 'You can't be taller than me and shorter than me at the same time.' you have to choose one. You (Hollywood) take the biggest piece of the market. You have that. But now there is another space to play around in. We occupy that space, quite gladly."

Nigeria was the first country in the world to incorporate digital video as the sole method for producing feature films. Also, Nigeria began direct-to-video release long before anyone else did. At the Alaba International Market in Nigeria, shopkeepers will not sell pirated copies of Nigerian movies, only pirated copies of foreign films. Charles Igwe explains that genuine copies of Nigerian films cost the same as pirated copies, so people will not choose a pirated copy based on price. Also, the genuine copy of Nigerian movies are released and available at the same time as pirated copies, so people have no reason to buy a pirated version of a Nigerian film.

Charles also notes that there is a large market for Nigerian films in the US with African-Americans. He praises the Internet for giving Nigerian film producers the ability to share their work with people in the US, and around the world, where their work would have once been kept out of the cinemas by large, controlling film studios. 

"These days you can access anything you want, any way you want, from anywhere in the world. So we have this portal that is valid for guys abroad, and I can reach them from here." 

Ronaldo Lemos finishes this look at Nigerian cinema with these words:

"Society is the biggest competitor for Hollywood, for the music industry, for the publishing industry. So, you have this new competitor that is everyone else. The law has been consistently changed for the past...12 years in order to protect certain very specific interests, especially for the North American cultural industry, in order to prevent society from becoming the producer of culture in itself and for itself."

Brazil

In Brazil, the film follows music producer Beto Metralha and DJ Dinho, two of the key contributors to the soundtrack of the Tecno Brega (literal translation - "Cheesy Techno") movement. In his studio in Belem, Brazil, Beto demonstrates his method for creating a new song. He begins by hearing a song he likes on the radio. Then, he finds and downloads that song from a filesharing site (possibly Pirate Bay), he listens to the song on his computer to make sure it is suitable for remixing, and then decides how to manipulate elements of the song to make it fit into the tecno brega genre. In the film, Beto remixes the Gnarls Barkley song "Crazy," which is interesting, since Danger Mouse is half of Gnarls Barkley and he was featured earlier in the film. One of Beto's friends tells him the story of Danger Mouse and how his rise to fame came out of making The Grey Album without caring about copyright. Beto remarks, "He is lucky. He is also lucky that he's not in jail!"

Beto and DJ Dinho explain that in Brazil, artists don't make money from selling their music on disc. The artists merely drop off a copy of their new CD for the street vendors to copy and sell. What the vendors are actually doing by distributing pirated copies of pirated works is promoting specific music producers and DJs. Through strategic promotion, the vendors help bring more people to the weekend parties that happen in their area. With an average of 5,000 people at each party, these weekend parties are how the producers and DJs really make their money. We then see thousands of Brazilians enjoying and dancing to Beto's remix of Gnarls Barkley's "Crazy." 

Philosophical Round-Up

Before the film comes to an end, it cycles through some of the interviewees giving their final thoughts about copyright and the look of things to come.

Renaldo Lemos:

"When the band the Pixies reunited a couple of years ago, the entire press was raving about the fact that they were using a new business model. They were recording their concerts live, so your way out, you could buy CD of the concert you just listened to. The Tecno Brega movement had been doing that 4 years before the Pixies. The interesting thing about these emerging cultural industries is the fact that they are very innovative, in terms of business models. The whole industry has a lot to learn. Society as a whole has a lot to learn from these emerging cultural forms of production that are taking place in poorer areas of the world."

 Peter Jenner (Sincere Management):

"We have all got to rethink the way we do our business. It's not going to be easy. Companies are going to change hands, artists are going to squeal, other artists are going to make a fortune. It's going to be a very turbulent time. There's no question that there's a risk that copyright will just atrophy and die. No one will enforce it. We've got to think about it in an incredibly radical way so that it makes sense."

Danger Mouse:

"For me personally, I'm kinda thrilled. But, I guess I'm on edge a little bit because I feel like I have to hurry up and do a lot of things because maybe things are going to change drastically. It's okay if it affects the business side of it, just hopefully the music won't get screwed up."

Charles Igwe:

"You need to take a look at your environment, the limitations of your environment, the advantages of your environment...and then do things which are particular to you, and be proud of them."

Dan Glickman:

"Clearly, people will not do things for free. It just defies human nature to believe that someone will come up and paint a picture, they'll do a statue, and they'll just give it away. Yeah, there might be a few people like that, but they probably don't eat very well."

Larry Lessig: 

"The Hollywood types say 'really strict control will grow the industry faster than anything.' But in fact, that's wrong. Freedom actually drives a more vibrant, important economy than restriction and control."

Oliver Chastain (VP Records):

"I think the culture is changing. In the 60s, 70s, 80s, music had a much more individualistic style of approach. With the explosion of the Internet, there has been this culture of...it's like a 'mix-tape' culture. You borrow from that, you borrow from here, you make a mash-up on video, you post it on YouTube. Everybody becomes a creator by taking pieces here and there from other people. Forget whether they steal or not, that's a reality we're going to have to deal with for a long time."  

Girl Talk:

"I hear people and their songs on the radio right now with riffs that sound just like Black Sabbath, more so than me cutting up Bachman Turner Overdrive will sound like Bachman Turner Overdrive. I can manipulate these sources more so than people ripping off chord progressions can hide their sources. It's the same exact rule just different musical tools."

 Larry Lessig:

"57% of teenagers have created and shared content on the Internet. That's not people peer-to-peer filesharing -- that's about 99%. But this is actually people creating material and making it available. To the couch potato generation, this is bizarre; we can't imagine doing that. But to them, it's the natural way to understand the world and create. You can either call them 'criminals' or 'pirates' and use all the tools of the law and technology to block them from this creativity, or you can begin to encourage them by making a wide range of material available that gives them a much better understanding of their past and a much better opportunity to say something about the future."

Dr. Lawrence Ferrara:

"Creativity itself is here on the line. Striking a balance between protecting the rights of those who own intellectual property with the right and the rights of generations of future, young and old people, to create is on the line."

Pittsburgh

Back in Pittsburgh, Girl Talk sits at his computer. He announces that he's just downloaded a track from a Brazilian music producer that is the tecno brega version of Gnarls Barley's "Crazy." This brings the film into full circle. Danger Mouse, the guy who became famous and formed Gnarls Barkley by creating The Grey Album had his song remixed by a Brazilian music producer, which later gets re-remixed by Girl Talk, the DJ from Pittsburgh.

The final shot with Girl Talk huddled over his computer, playing with the beats that Beto created, shows how remixing creates an important, richly layered culture. These two people are complete strangers, but they are able to connect through music from different parts of the globe, thanks to the Internet. 

Conclusions 

This film takes a very careful, considered look at the issues around copyright law, and it provides what seems to be the logical conclusion that copyright law, while important to protect some commercial aspects of intellectual property, needs some serious cutting back in order to provide future creators with the tools necessary to make new expressions. 

As we've seen with Girl Talk, Danger Mouse, Charles Igwe, NWA, Beto and Dj Dinho, creativity is alive and well in all parts of the world and in various economic conditions. People will create just to create; money doesn't necessarily motivate everything. This is important, because people like Dan Glickman don't understand motive without profit. 

Larry Lessig reminds us that remixing is the method by which today's culture manifests its creative expression. We have the choice to make criminals out of artists using a common medium to make a statement, or we can relax control over media and allow creators (now and yet to come) the chance to create.

The film industry of Nigeria shows us that by an industry that respects its surroundings has a great opportunity to thrive. If box office ticket and DVD prices were to reflect the global economic depression, would more people be willing to pay for these things more often? Maybe. It can be argued that since not enough people in Nigeria have the equipment to post and download Nigerian films from the Internet, Charles Igwe doesn't have to worry about competing with 'free.' But the truth is, In Nigeria, watching a film on a disc at home is the experiential equivalent of going to the movie theaters in America. Home video is the experience they are willing to pay for; we pay for the experience of seeing a film in the theater. They are both the same. It is a social gathering and a chance to absorb culture together. 

Beto and DJ Dinho in Brazil show, much in the same vein as the Nigerian film industry, that emerging economies are very malleable and innovative. They adapt to what they have and what they like, and even if they use another person's expressive work to make their own, the creativity behind their work is obvious. 

Dr. Ferrara asked earlier: "Who really owns what?" and "What is the purpose of copyright?" 

Copyright is not some horrible idea. It is good that authors and artists are able to rest easy, knowing that they won't have to compete with someone else over what they have spent time and energy creating. But a problem appears when a copyright owner wants absolute control over every use of their work, even work that doesn't compete or is so manipulated that it becomes something else. New additions to our cultural expression rely on what has been done before...and of course this is nothing new. Countless authors and screenwriters have stolen ideas from Homer's The Odyssey, or Moby Dick, or the Bible, or Ernest Goes to Camp --- we have always used the old to make the new. If we can expand our cultural library to make more media available, creators will have more to (legally) draw from.

The truth is, everybody owns creative expression. Once you take a glance at the Mona Lisa, you own a part of it. Your judgment of that painting, widely published or kept to yourself, becomes part of what that painting is. You'd most likely be arrested for taking the canvas, or the frame, or any physical part of it -- but the experience of seeing it is what gives the painting significance. A new, exciting experience will always have value. Physical objects tend to lose their value; just ask my expansive VHS movie library.

Downfall Parodies - Controversy and Fair Use

*Most information for this post was gathered from knowyourmeme.com

The Internet MEME "Downfall," also known as "Hitler Reacts to..." and "Hitler Finds Out" is a series of video remixes of the 2004 German film Der Untergang (English title: Downfall). The MEME typically features the same scene from Downfall, when Hitler finds out that the German counter-offensive against the Russians never took place and the fall of the German Army is imminent. By simply changing the subtitles, YouTube users remixed the scene so that Hitler gets very upset over topical issues and trivial events.

Below are a series of "Hitler Reacts to" videos, illustrating the wide range of cultural topics this MEME is able to comment on.

Xbox Live

 

Problems with Windows Vista

 

Hitler's World of Warcraft Account gets Hacked

 

Hitler finds out that Barack Obama is not a US Citizen

 

Hitler reacts to Kanye West dissing Taylor Swift (at VMA)

 

Hitler reacts to the US Housing Market Crash

 

Hitler reacts to Rebecca Black's "Friday"




Varied Responses

On April 19th, 2010,Constantin Films began sending DMCA takedown notices to YouTube. On April 21st, the AP reported that Martin Moszkowicz, head of film and TV at Constantin films in Munich, finds many of the parodies distasteful and trivial in light of the seriousness of the Holocaust and World War II.

However, the director of Downfall had something different to say about this use of his work:

"Someone sends me the links every time there’s a new one…I think I’ve seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I’m laughing about the scene that I staged myself! You couldn’t get a better compliment as a director."

 - Oliver Hirschbiegel (excerpt taken from NY Entertainment Blog Vulture)   http://nymag.com/daily/entertainment/

Soon after the DCMA takedowns began, YouTube saw a huge resurgence of Downfall videos, in the opinion of Know Your MEME, due mostly to the "Streisand-effect." Some of these parodies even approached the takedown notices as their subject matter:

Hitler reacts to the Hitler Parodies being removed from Youtube

  

Though these videos are hilarious and fun, they have some rather serious implications. As goofy as "Hitler reacts to" videos can be, they are a testament to the creativity that modern technology has allowed to flourish and how sites like YouTube give everyone on the planet the chance to be cultural commentators.


In response to the takedown notices on YouTube, the Institute for Internet Studies has offered users a video guide for understanding fair use and navigating wrongful takedown notices:

Once a piece of media gets released into society, though it may be owned on terms of copyright, it belongs to everyone as a cultural relic. These works serve as expressions of our fellow human representatives; which we can either agree with and praise, have complete disdain for, or ignore altogether. This is freedom of expression.

The Pirates Speak - Part One - Steal This Film

What do the people who disagree with current copyright laws have to say?

In response to the current state of copyright laws, tons of media have been spread throughout the Internet, offering a different look at intellectual property. Two documentaries, Steal This Film (2006) and Good Copy, Bad Copy (2007) seemed particularly articulate on the subject.

Both films can be viewed online for free:

http://www.stealthisfilm.com/Part1/

http://www.goodcopybadcopy.net/

With part one, I'll be trying to help illustrate what the "pirates" interviewed in Steal This Film feel is wrong with copyright laws, focusing heavily on their view that American Intellectual Property proponents do not own the Internet; they do not have jurisdiction over the world.

Part Two, to follow shortly, will focus more on what the artists interviewed in Good Copy, Bad Copy have to say; mostly that stringent copyright laws are killing the creativity that they claim to promote.


The Pirate Bay

Steal This Film focuses on a specific group out of Sweden, the collective that manages The Pirate Bay. The Pirate Bay is the world's largest Bittorrent tracker, offering anyone looking with a comprehensive list of torrent links. Using these torrent files along with any number of freely available Bittorrent client programs, a user can connect with thousands and thousands of other people who are offering to share (or 'seed') the same file(s) the user is looking for.

In May 2006, Swedish police raided eight offices in Stockholm where servers for The Pirate Bay were located. The Swedish police did this because of a number of threats that the MPAA made to Swedish officials. The MPAA even pulled out all the lobbyist stops it had and sent word that if Sweden didn't do something to rein in these pirates, the US government would consider placing sanctions on them.

While the raids were ineffectual -- The Pirate Bay's servers were back online within three days of the raid -- several people who ran the site have been found guilty of "assistance to copyright infringement" and have been imprisoned and heavily fined. This has not stopped The Pirate Bay from running, however. The servers have all been given many redundancies and according to co-founder Fredrik Neij, "it is virtually impossible to take down."

Steal This Film asks the audience to listen to these people dubbed "pirates" by the media and ask: Don't these guys make more sense than corporations pushing for longer prison time and more crippling fines for downloading The Parent Trap?

The Changing Nature of Media Consumption

Years ago, VCRs came onto the scene. People were finally free to watch what they wanted, when they wanted to watch it (providing they could set a VCR timer properly and there wasn't a power outage). The Motion Picture Association of America (MPAA) went mad, and Jack Valenti testified to congress:

 "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."

Yet the MPAA adapted their methodology and hundreds of millions of VHS copies of movies and television were sold or rented every year. The film industry cashed in.

Things have changed in recent years. New technologies that make P2P file-sharing easy and cheap have the MPAA and RIAA up in arms once agian.

It appears that the MPAA and RIAA are not only falsely lamenting their loss in profits, they are struggling against the new technology that promises to give them a new stream of revenue. Of course, Steal This Film was made over 5 years ago, and as anyone with a Netflix or iTunes or Pandora or Amazon account can tell you, the industry is cashing in on internet technology. Network Television even shows full episodes of their programs on sites like hulu.com, raking in the money from selling ads -- in addition to the money they receive selling network ad time and DVD sales.

The problem is that the profits losses that the MPAA and RIAA cite to justify tighter restraints on copyright infringement aren't really that bad. On the contrary, there have been some record gains in recent years. This is a chart of movie industry profits from 1995-2011:

http://www.the-numbers.com/market/

If you'll notice, the numbers stay fairly high... these are surprisingly steady profits to take in during a global recession. Sure, the numbers have slightly dipped a couple of times in the past few years, but you have to remember that some of that lost revenue is due to people losing their homes and not having a place to watch DVDs anymore.

The real worry here is that the film and record industries have cut back the number of films they make/the number of artists they take on, even though they have maintained steady profits. So, is it "piracy" that is killing creativity, or is is corporate greed?

On a fundamental level, our culture of media consumption has changed. The days of extensive home video collections, with libraries of discs and tapes, are being replaced by DVRs, Cloud computing, online streaming services, and even smart phones.  We are becoming less and less the collectors of media and more often simply transient observers in the ocean of media that is out there. (Navneet Alang -- http://www.techi.com/2011/03/everything-you-know-about-piracy-is-wrong/)

The MPAA and RIAA frequently equate a download with a lost sale. What they're failing to realize is that is not the case. Someone who downloads a movie or record, especially in poor neighborhoods and developing countries, would probably never buy those things in a store anyway. It is rarely a lost sale and much more frequently a case of a film or a piece of music reaching a much wider audience. (Navneet Alang -- http://www.techi.com/2011/03/everything-you-know-about-piracy-is-wrong/)

Availability

In many countries, P2P file-sharing is the only way to experience some media works. In China, where media piracy is the most rampant, their government allows only 20 foreign films to be shown in theaters per year. The Chinese would not be able to see most of the movies that are released if it weren't for piracy.

P2P file-sharing is a far more efficient and versatile means of distribution than the current system. With one instant download, a user can play a media file on any number of entertainment devices. Providers of legal downloads often include DRM encryption, meaning that the number of different ways a user can consume media is greatly limited -- and their version is the one people have to pay for.

For the environmentalist, acquiring media via P2P is quite a bit more desirable than the current methods of manufacturing and distribution. There are no discs to manufacture, no possibility for labor exploitation via the sweat shop, and no fuel burned to ship units from country to country.

Tougher Laws = More Piracy

The heightened legal restrictions concerning file-sharing have done nothing but encourage more file-sharing. Consumers look at industries that raise prices during a global recession and take a step back. For someone in a family, which now has to manage on half the income because of job loss, luxuries like movies and music are no longer affordable. Agencies like the MPAA and RIAA blame so much of the industry's losses on illegal downloads, which is a half-truth. True, some people who used to be good little consumers may no longer buy media but download it for free. The myth is that all of these "pirates" are just kids who want to get something for nothing, rather than people who can no longer afford to pay $15 for every movie they want to see.

Media corporations have become oligarchs, or at least attached to oligarchs. A small number of media corporations, owned by an even smaller number of giant corporations, control the type and amount of content put out every year. Piracy helps level the playing field by empowering all people to decide what sort of behavior they want to support, especially when considering the actions of the parent companies. For instance, they might ask if you want to pay for a film from Universal, owned by GE, one of the largest defense contractors in the world and therefore a part of the military industrial complex; or will you save that money to give to the local busking homeless guy, so he will sing Give Peace a Chance (which is also an act of copyright infringement)?

Actor Richard Dreyfuss had this to say:

Who are we giving money to? Other than lump sums paid at the time of artistic creation for everyone who worked on a project -- including singers, directors, producers, cameramen, productions assistants, grips, drivers, studio technicians -- some people (Singers and songwriters in music, above the line personnel in film) receive residuals as part of their contract. For a musician, the going rate for residuals is about 9.2 cents per song. While this amount certainly adds up when a track is downloaded millions of times, what about the other 89.8 cents? Well over half of the money from every track sold on iTunes goes directly to the record label.

So, who is trying to protect their money with stringent copyright laws? The artist that has already been paid, or the corporate proprietors who profit from the creative work of others? This is yet another PSA produced by the film industry on the negative consequences of internet piracy.

Obviously downloading movies and music for free has some effect on the entertainment industry. But is the effect as bad as the media corporations say? Is it impossible for the industry to keep making money so long as file-sharing continues? This is what the Pirates had to say about it:

Our profits...I mean, artists' profits are at stake!

"Before the advent of recorded music, musicians relied mostly on getting paid for live performances to support themselves. Recorded music presented a market for corporations to exploit. Now, it seems that the market might return to a state where musicians get most of their money for performances." [Rasmus Fleischer (Rsms) - Piratbyran]

The demographic of people who pirate the most (males, 16-24, living in urban areas) has been and (despite piracy) continues to be the demographic who gives the motion picture and music industry the largest share of revenue. Doesn't it make more sense to be passive about media piracy, if it means that the people doing it will in turn spend money on concert tickets, band merchandise, Star Wars toys, or a special edition DVD to add to the collection or just to hear the commentary track?

So the question is, should the US continue to pass and enforce these Orwellian copyright laws, alienating their best customers, looking sleazy and greedy while trying to squeeze every penny out of Ernest Goes to Camp; or should we rethink what copyright means, what intellectual property should be defined as, and what level of a free exchange of information does a free society really need to feed its cultural appetite?

People call The Pirate Bay many things, from malicious saboteur to petty thug to divine salvation. This is what The Pirate Bay is meant to be, according to the words of one of its co-founders:

"For quite long now we've been involved in this free speech issue. This is a direct extension of that. The Pirate Bay is a sort of organized civil disobedience, to force a change in the current copyright laws." -- Gottfrid Svartholm (anakata)

Anti-Piracy Ad Campaign

You Wouldn't Steal a Car


If you have purchased a DVD, seen a movie in theaters, or watched broadcast television commercials in the last seven years, you have probably seen an ad like this one:

The following parody of an anti-piracy ad was featured in Series 3, Episode 3 of the BBC Sitcom The IT Crowd, titled "Moss and the German."

While hilarious and extreme, the creative team behind The IT Crowd make an important point: anti-piracy ads establish downloading media files as a serious crime; on par with burglary or grand theft auto. 


The MPAA (Motion Picture Association of America) began running ads like this in 2004, maintaining a long tradition of fighting copyright infringement with a heaping helping of hyperbole. In the 1980s, the MPAA opposed the introduction of the VCR to American consumers with the same level of hysteria. Jack Valenti spoke at a 1982 congressional hearing about copyright infringement, where he voiced his concerns about the "savagery and the ravages of this machine," comparing the effects of the VCR on the film industry and the American public to the Boston Strangler. 

Ads like these come as a reaction to the emergence of computer and internet technologies that made peer-2-peer sharing much more efficient than it had been in the past. Moreover, the "No Electronic Theft (NET) Act of 1997" (H.R. 2265) made the revision that all copyright infringement, even copyright infringement without financial gain, would be subject to criminal charges.

Some interesting quotes from the House floor:

"...the No Electronic Theft or Net Act, represents an important legislative response to those persons who cavalierly appropriate copyrighted works and share them with other Internet thieves[...]there are a good number of Americans who enjoy stealing. Thievery, larceny, fraud, piracy, call it what you will. It is in their blood, and even in some instances, even when they do not realize remuneration or gain from it. Just the thrill of stealing." - Representative Howard Coble (NC 6th District)*

"Pirating works online is the same as shoplifting a video tape, book, or computer program from a department store. Through a loophole in the law, however, copyright infringers who intentionally pirate works, as long as they do not do so for profit, are outside the reach of our nation's law enforcement officials. This bizarre situation has developed because the authors of our copyright laws did not and could not have anticipated the nature of the Internet, which has made the theft of all sorts of copyrighted works virtually cost-free and anonymous." - Representative Bob Goodlatte (VA 6th District)**

"The NET Act addresses serious problems created by the LaMacchia decision. You have heard what those problems are. I will not repeat them. Suffice it to say that MPAA very strongly supports the NET Act and we urge its rapid enactment....As I said earlier, we could go through enormous resources to civilly enforce of our copyrights, but effective anti-piracy action cannot be done without criminal enforcement; and we depend heavily upon law enforcement agencies to enforce copyrights." - Fritz E. Attaway, Senior V.P., Government Relations and Washington General Counsel, Motion Picture Association of America.

*It should be noted that the National Cable Television Association, Time Warner, the National Association of Broadcasters, and the American Intellectual Property Law Association were among Rep. Coble's top 10 contributors for 1997-1998.*

**Rep. Goodlatte's top campaign contributions in 1997-1998 also included the National Cable Television Association and Time Warner.**
  
This is when the Internet bit of Internet Piracy really kicked off. It was a simple revision of the copyright law, but that revision removed the need for financial gain in order to prosecute criminally. A new breed of criminal was born -- the cyber pirate. People that shared files of copyrighted work for free were now eligible to incur sentences from 1 year (misdemeanor), to 5 years (felony), or as much as 10 years (repeat offenders). The MPAA unleashed these ads to hopefully intimidate the pirates and retain their steady profits.  


Submission


Even though these ads have become ubiquitous in the United States, it is important to stop and realize that the agencies like the MPAA are behind all of them. Recording artists and filmmakers do not make ads accusing their fans or consumers of being criminals, that job is taken by the RIAA and MPAA. Correction, most artists don't preach about piracy. Jack Black just had to be different:

At the very least, this ad is better than the others because it is meant to be funny, rather than being unintentionally funny because the MPAA is on a witch hunt. I can't help but think that even though Jack probably does support at least some aspect of copyright law, he must feel like such a corporate shill at times. 

Fair Use

Before getting into this post I need to clarify two things:

1. I am beginning this blog with a look at fair use because I assert that everything I cover or choose to include in my posts closely follow the guidelines of fair use.
2. Despite the name of this blog, fair use should never be confused with Media Piracy. Fair use, however disputed in the legal landscape, is a completely legal way to use copyrighted works without permission. My hope is that looking into fair use will offer a foundation to investigate the burgeoning "permissions culture" which makes intellectual property issues (like Media Piracy) so controversial. 

Fair use is an often-misunderstood ingredient in our cultural gumbo. Our painfully litigious society reminds us that every form of expression is owned and comes with a (sometimes crippling) price tag, so we tend to forget about fair use and the service it offers to the global community. Scores of authors, lawyers, and academics have written about fair use, with a wide range of opinions on its definition and application. In the interest of sticking with an academic viewpoint, I will be referencing the Duke Center for the Study of the Public Domain, specifically the 2006 graphic novel Bound by Law? produced by Keith Aoki, James Boyle, and Jennifer Jenkins, which helps to establish what fair use is and when it is applicable for another work. A PDF of Bound by Law? can be found here. 

In Bound by Law?, the main character is Akiko, a documentary filmmaker who is working on a film about New York. Because there are so many incidental or fleeting inclusions of other people's copyrighted work in her footage, she worries that her film can't even be made. Luckily, two figures appear to help guide Akiko through the minefield of copyright law and help her understand what she can and can't use in her film.

The two guides begin by establishing what is a copyrighted work. There are 8 basic forms of copyrighted work protected by US copyright (once they are "fixed in any tangible form of expression"):

1. Literary works
2. Musical works
3. Dramatic works
4. Pantomimes and choreography
5. Pictorial, graphic, and sculptural works
6. Motion pictures
7. Sound recordings
8. Architectural works

Since 1978, a staunch "permissions culture" has mutated the purpose of copyright law, and works like these have been automatically copyrighted as soon as the expression became fixed in a tangible form. If another artist comes along, like a documentary filmmaker, and happens to capture another person's copyrighted work in their footage, it is up to the filmmaker to hunt down the copyright holder and get permission to include their footage in the final film. This goes for all work that isn't in the public domain, which mostly applies to works created either by the federal government or published before 1923. This leaves much of the creative culture as off-limits for use in subsequent forms of expression.

The two guides give Akiko examples of when copyright infringement has hindered an artist's ability to express themselves freely. In Jon Else's documentary Sing Faster, he filmed a scene of stagehands playing checkers backstage of an opera. In the background, a television was on and 4 1/2 seconds of The Simpsons could be seen in the shot. Fox threatened to sue Else, unless he replaced it, which he eventually did. In Marilyn Agrelo and Amy Sewell's documentary Mad Hot Ballroom, one scene featured a ringtone that happened to be the theme song from Rocky and in another scene a kid playing foosball yelled out "Everybody dance now," a line from a song by C&C Music Factory. EMI, who owns the rights to the Rocky theme, demanded $10,000 for the rights to use the snippet of the song in the film, and Warner Chappell demanded $5,000 for the line from the C&C Music Factory song. In the end, the filmmakers decided to cut the scene at the foosball table and got a better deal for the Rocky theme, but still had to pay. Davis Guggenheim, director of the PBS documentary The First Year, had to cut a poignant scene illustrating the generational gap between a teacher and his students when the Led Zeppelin song "Stairway to Heaven" came on the radio, because he couldn't clear the song.

In each of these cases, the filmmakers had a sound argument for claiming that the copyrighted works in question fell under the protection of fair use. However, in a culture lousy with copyright lawyers sending threats of lawsuits or "cease and desist" letters, most of the filmmakers caved in without putting up a fight. The point that the two guides are trying to make is that with the emergence of this "permissions" or "rights culture," the traditional feeling that a copyright didn't give the copyright holder control over every use of a given work is being replaced by a feeling that a copyright grants absolute control.

Akiko feels downtrodden by all of this, but then the guides counter these examples of artistic stifling with examples of artists using copyrighted works under the protection of fair use. In Chris Hegedus and D.A. Pennebaker's film The War Room, Ross Perot walks away from the presidential race as Patsy Cline's "Crazy" plays in the background on a TV. The filmmakers did not ask permission and they weren't sued, because this was fair use. Robert Greenwald's documentary Outfoxed, which heavily criticized the journalistic validity of Fox News, featured mostly clips taken from the Fox News network. This use was not challenged. Michael Moore used dozens of uncleared clips from newscasts warning about "Black Male Suspects" to illustrate racism in the media in his film Bowling for Columbine. Again, this use was not challenged, because it is protected under fair use.

The 1976 Copyright Act specifies in statute 107 that there are limitations on a copyright holder's exclusive rights to a work. Basically, anyone can use a copyrighted work for the purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and it does not infringe upon copyright law. There are four factors that are considered to establish if a use of material is fair use:

1. The purpose of the character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors. 

The two guides then walk us through a series of court cases that establish some precedent with fair use. In 1984, in the case of Sony v. Universal Studios, the Supreme Court found that "time-shifting" or videotaping television shows to watch them later was an example of fair use. Universal Studios was asked to prove market harm by people taping shows for their own private, noncommercial use, which they could not do. in 1994, in the case of Campbell v. Acuff-Rose, the Supreme Court decided that 2 Live Crew's use of Roy Orbison's song "Oh, Pretty Woman" for their song "Pretty Woman" was fair use, because 2 Live Crew's version was a parody of the original. In the 2001 case of Suntrust v. Houghton Mifflin, it was decided that author Alice Randall's novel The Wind Done Gone, which was a parody of Gone with the Wind from a slave's point of view, constituted fair use. The court of appeals noted, "It is hard to imagine that Randall could have specifically criticized Gone with the Wind without depending heavily upon copyrighted elements of that book. A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original..."

The guides then explain how copyright term limits have changed through the years. At first, a copyright lasted for 14 years. Up to 1977, a copyright term was 28 years with the option to renew that copyright for another 28 years. Now, however, the copyright term lasts 70 years past the death of an author and 95 years for corporate authors. They explain that this means so much of 20th century culture is considered off limits for use, and this constantly extending copyright term puts more pressure on fair use. This next series of comic panes perfectly illustrate what this change in copyright law means:

By the end, Akiko is asked to consider all that the guides have explained to her and imagine what kind of copyright system she as an artist and filmmaker would be comfortable with. She imagines a world (shockingly, not too unlike our current conditions) in which every single piece of artistic expression is owned and controlled strictly. Akiko doesn't care for this and feels that it would be tough for creativity to thrive when raw materials are so closely guarded, but she still understands the need for artists (including her) to be paid for their work. She is then asked to consider a world in which some things are owned and controlled, but there were far more areas that are open for public use. The guides take this vision a step further and use the metaphor of this second system as a type of an "Ecologically Sound Cultural Landscape" or "Cultural Environmentalism." Much like developments need to be carefully balanced with wild, open spaces in order to have a healthy natural environment, copyright needs to be balanced carefully with fair use and the public domain in order to have a healthy cultural environment.

This final realization is what the whole fair use/public domain/copyright argument comes down to. Copyright is intended to protect the rights of content creators, ensuring that no one takes credit for their work or makes a profit off of their toils. These early intentions have been blurred with the advent of corporate media giants. Now, it isn't necessarily an artist that is defending the use of his or her work, but a copyright owner, which could be a movie studio, a distribution company, a record label, or a publishing house. None of these groups can assume responsibility for the brilliance of an artist's work, they can only claim that legally they have the right to make every copyright they hold make as much money for them as possible. This is not the point of copyright, and it needs to be changed.

I think this look into bogus copyright cases and fair use really comes back to media piracy because it is this culture of highly litigious copyright holders that fuel an opposing culture of media pirates. I believe strongly that people, most people, really want to support an artist for their work. However, there is so much confusion over who owns what and where the $15 a consumer pays for an album or a DVD goes that people can't be sure that their money helps support an artist, other than adding to reports of gross sales and possibly encouraging a studio or record label to work with that artist again.

This horrible mutation of what copyright should be is ultimately hurting the artists it is supposed to protect. We need to reconsider the original intention of copyright, the way copyright is being used now, and how copyright should change in order to benefit everyone. Like Akiko, we should become "Cultural Environmentalists" and try to repair our cultural landscape, for the good of the history and future of artistic expression.