Live Blogging from World’s Fair Use Day
Live Blogging from World’s Fair Use Day
Live Blogging from World’s Fair Use Day

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    Second Panel –Commentary, Criticism and the New Publishing Paradigm, moderated by David Bollier.

    The first speaker is Pat Aufderheide, director of social media at American University's School of Communications. The purpose of copyright is to promote culture, with “limited” monopoly and provide balance with exemptions to make new culture. Copyright holders created imbalance in copyright. At this point, fair use which was “dinky backwater” is now escape hatch from copyright holders. It's the most flexible copyright exemption in the world. Best Practices movement is about education. AU has published best practices guides, with filmmakers as first one. Eight weeks after guide, three films went to Sundance and got picked up. Biggest evidence that Best Practices guide, eight pages long, is that every insurer of errors and omissions (required for broadcast and cablecast) accepts guide.

    Other guides are for schools on media literacy, used for national student contests, for online video. Online code been used by Elisa, Jonathan, creates set of categories familiar to lawyers in analog world and remixers in digital world. Use word “collage” so familiar to analog types. Made films illustrating guides. They are working with research librarians, poets, communications scholars.

    Lincoln Bandlow, an entertainment lawyer from L.A., jokes that Pat's guide is “So You Think You Can Infringe?” Has argued for fair use on behalf of studios and big corporations. Big companies are on other end of issues, use clips or dialog, fighting the good fight for fair use. We either have copyright protection to incentivize artists, and need fair use, and it has to be gray. If had bright line, is stop the next creative person. Need some degree of freedom.

    Bandlow goes through fair use factors that judges evaluate. Is use commentary, criticism, etc.? That's kind of things have in mind. Courts will look at commercial, nonprofit. If make money off of infringing content, could be a problem. Tells client can use possibly infringing material in film, but not in trailer. Also look at whether new product is transformative. Courts are considering more important, overtaking whether is commercial use. courts don't understand transformative by context. Not change, but use differently. Judges still aren't getting that so well. He advises that something be done with material. Courts also look if parody. Simply being funny isn't enough. Has to parody underlying material, courts have found.

    Biggest factor is whether material being used has been published. If not published, won't win on fair use because authors have right of first distribution.

    Courts also look at how much material being used. Bandlow doesn't know why there is mythical “10-second” rule, but Pat explained it is carryover from old newscasts. He doesn't like how courts interpreted commercial potential. If stops a sale, should count against fair use, but when put music in a movie, is nonsense.

    Bandlow shows Ohio Republican commercial for John McCain using Jackson Browne song Running On Empty to attack Obama energy policy. Browne sued on several grounds. Bandlow pled fair use on behalf of Republicans. He lost. Every time he sees litigation is artist suing for use without permission. There was no transformation and wasn't commentary on Browne.

    Mike Masnick, Techdirt author, talks about business models. People realize copyright affect them, when they didn't before. Free speech, human rights, are now part of the discussion.

    Ian Shapira from the Washington Post is reporter who wrote story and gotten into “a viper pit.” He wanted to write about world of experts who give talks to boomers about how young people behave. It took a lot of work to do the story, interviews, etc. Gawker, among other blogs, linked to the story and excerpt. But wrote a month later for Outlook section, editor was psyched that Gawker had linked. Gawker excerpted sufficient amount that reder of Gawker had excerpted too much to original story didn't need to be read. I don't mind links, likes traffic. When excerpt so heavily, don't go to original, are severe repercussions. Huffington Post, Daily Beast, big sites, aren't hiring people and giving them health care. Papers like the Post and any site creates original content should be rewarded. We have higher ad rates than Gawker, why would client advertise in the Post?

    Very much like HuffPo, Newser, etc., wish there was a way for someone who creates original content to get paid for it. Web traffic isn't helping the bottom line, Shapira said.

    Aufderheide says Shapira's story shows lack of clear interpretation of fair use. Some of business model problems exist outside of copyright. “It's an ugly, ugly moment,” she says, when some things work and others don't. Pat says could establish through journalism associations what fair use is.

    Bandlow wants to boil down fair to use — what did other guy lose? What did site give us? He thinks Gawker didn't give the Post much, and took everything.

    Masnick disagreed. Gawker linked to story three times, added commentary, drove traffic to the Post. Some people may have read instead of the Post, but introduced it to new people, entirely different audience. I don't see much loss. Bigger issue, he said, it that it isn't fair use issue. Is a business issue. Newspapers had little competition in ads, now they have a lot. If Post had given people reasons to read on the Post site, would have been lots of reasons to go to the Post site, rather than Gawker, things Post should have done but didn't that led to anger at Gawker. If they had done those things, wouldn't have hurt the Post.

    Shapira agrees different audiences. He's fine with Gawker riffing and ripping. I just feel they made it pointless to go to the original article when copy and paste four or five paragraphs with their own commentary. Masnick responds that Post can look at traffic to the story. The bigger story is that Post doesn't live or die on traffic to one article. Getting people to discuss is the good thing. If they pay attention to Post writing on topic, will know to look at Post.

    Bandlow jumps in, is fair with all the articles? Will destroy the Washington Post. Masnick notes aggregators link to original site. People like original articles. Job is Posts' to make source material attractive. Need to bring in the traffic. Because, Shapira responds, there is no commercial value. Gawker ad rates are cheaper.

    Aufderheide notes that no one promised newspapers or any other business a lifelong purchase on their business model. Many companies blame fair use for disruption in their business model. when Ian says he “really minds” it, but stuff is happening. Things are changing. Fair use is so valuable as part of the law because so many instances want to quote culture and people would mind. It doesn't matter if Twilight creators object to Jonathan. If Gawker is creating and repurposing and Ian minds, they stiil have the right to use. Shapira supports organization wants to staff reporters and pay them. Organizations that provide those benefits and salaries are hurting. Web hasn't figure out structure on big scale. Masnick says is not a copyright issue.

    Discussion returns to the Browne case. Cases come out in favor of fair use, Bandlow says, if there is commentary on the candidate and issues. He sees more issues on trademark and right of publicity. He noted Heart didn't want Republicans to play “Barracuda” for Sarah Palin, but GOP had license to do it despite objections of the band.

    Discussion turns to the Shepard Fairey case and which photo was used. That was when Associated Press sued for his poster using an image of Barack Obama. There are similar cases. Bandlow notes only face structure was taken.

    Masnick notes that if artists complain, not convinced is a copyright situation. Browne is making a political statement also, just as new album is coming out.

    There was a discussion about Shapira's article and how much of an article is too much to be quoted – should there be separate rules for news or for features? He wasn't sure. Shapira said he likes Twitter because it is “a tease” for a larger story.

    Jonathan McIntosh notes he couldn't get into the Post web site without signing up for it, which is why he goes to Gawker.

    Aufderheide says, again, not all business model problems are copyright problems, in reply to question about relationship between publishers and blogs. Masnick said that many businesses and individuals who relied on copyright as a crutch for their business, it's tough to separate issues. If they realized there are other ways, is different issue. Some think need copyright and don't think about other business models.

    First Panel — Artistic Innovation and Participatory Culture. The moderator is Warrington Hudlin, PK board member and film maker.

    He does commercial firms, but is tempted to cross over to what panelists are doing.

    Elisa Kreisinger, remixes, lectures on fair use, teaches high schoolers. She's going to show some of her work showing how not much changes in Washington over the years. You Can't Vote in change from YouTube. Remix questioned legitimacy of voting process, focus back to people's movements.

    Chris Burke, Writer and director of This Spartan Life online TV series. Uses titles from video games to create new stories, Microsoft's Halo among them, in the machinima genre. Video game companies see value of user generated content, extends the shelf life of the game. It's a good environment. Microsoft is OK with it, except for commercialization of the work. He will show trailer. Need fair use to make sure people aren't sued at every turn.

    Jonathan McIntosh — pop culture hacker, take video for political/social commentary. He's showing excerpts. So You Think You Can Be President remix is first example. Check out the whole thing at

    Now he's showing some of his Buffy/Twilight remix. Also brilliant.

    Next is Nina Paley, who did fabulous film, Sita Sings the Blues. We're showing the trailer. It's feature film and it's “copy left.” She encountered problems clearing 80-year old music. Fair Use won't help. While going through this, people said copyright protects her, as an artist. Can get 5 years in jail for non-commercial use. Made more money with copyleft and share freely than any work under copyright. Although appreciate fair use, is not going to solve the problems of copyright, which we don't need. Hope talk more about reforming copyright than defending fair use. Copyleft is what public domain would be if everything not copyright by default. One restriction can't be copyrighted. As long as everything is considered property w/o registration, then copyleft allows use.

    Dan Walsh — Irish, IT nerd by day, kills Garfield by night. He removes Garfield from the comic strip in his Garfield Minus Garfield site. Without Garfield, Jon “is a really disturbed person.” had 1,000 visitors to his site in one day, then grew to 15,000. He's not a copyright rebel against corporations. He's doing in his bedroom, was really afraid of getting sued. Once into second week, 500,000 people a day were visiting the site. Started getting some media attention. In March 2008 started getting MSM attention from New York Times, New Yorker, Rolling Stone. Washington Post wanted to do an interview with him, and with Jim Davis, Garfield's creator, who liked Walsh's work.

    Warrington asks for horror stories.

    Nina tells her story of how songs will never be in the public domain thanks to Congress continually extending copyright. Everything is owned by big media corporations. They own oldest culture in studios to theatres and channels. They wanted to charge her more than cost of film. Legal costs to comply with law, extraordinary. Possible punishments, 5 years in jail, horrifying. She wrote about it. She has deal to show the film, with continually paying copyright holders. I had the option of encouraging pirates to take, and distribute. By “copyleft,” film could go farther than with distributor. I wanted to make it available to share legally. You shouldn't have to break the law to share culture.

    McIntosh notes Buffy, Twilight by big corporations, Fox and Summit Media. L.A. Times wanted to do a story on remix, called Buffy producers. They loved it. Executive producer doesn't own content, but could have gone the other way. He's not going on YouTube and making fun of amateur video. He doesn't have permissions, his personal ethic.

    Chris Burke says should be in public domain after some use. He did interview in 1990, on his music with remixes, said it's his duty to take popular culture as free market of ideas.

    Elisa said it's why important to reuse popular culture, critique quicker and easier. Popular culture has audience identification. With fair use in popular culture, people couldn't identify with it.

    Nina says Sita is valuable because audience is sharing. Value is from audience, culture is like a language. Jonathan says culture moving to audio visual language. Are we allowed to speak in audio-visual language, to comment on what was on TV last night, or music we heard. Should work on way to do without being sued.

    Elisa says that that instead of op-ed article or long New Yorker article, can do critique in five minutes and feel rejuvenated. Can digest in two minutes. In past, text and paper, now have A-V language, enters brain at faster pace.

    Nina notes that fair use is limited to parody and other things, can't keep up with expansion of copyright. So much cultural comment not parody or critique as Fair Use allows.

    In the past, John Mellencamp used Van Morrison riffs, was “influenced” by the past. Now is considered a rip off.

    Nina questions why conference is on fair use. She wants reform, which will mean less work for lawyers, while lawyers get more work with fair use reform. People always being paid are the lawyers if legitimize copyright. We need radical copyright reform.

    Warrington asks if their work pays bills. Elisa says her remixes, she doesn't expect to get paid, but skills learning media literacy, editing, building a story, that is invaluable. It's heartwarming.

    Chris wants to make a living from This Spartan Life, but not yet. Game companies are supportive, but tough to make a living, particularly in New York. Others are doing it, but machinima out there is free because can't pay legal fees. We're in it for the long haul; he makes a living from audio.

    Jonathan doesn't think negotiations to make fun of big corporate content would go well. He detests online ads on video. Others put ads on his video on their site, and he doesn't like that. He has a day job, lots of value otherwise.

    Nina allows use of Sita, so people make money from it. Any use of the film benefits her. Making money, still has debt. More people see film, more they buy DVDs and pins, and want to support artists. Dan has no objection to make money, depends on it's done. People ask his permission to use strips, and he notes he's ripping off others.

    Question — are afraid might get sued?

    Jonathan says that everything he does thinks he might get sued. He doesn't house or car. This is a very real thing of stopping yourself. He knows what his rights are, and might get sued, he also knows lawyers. YouTube never says Video is back because of fair use, just announcement that something is removed for infringement.

    Elisa notes that an AU study says documentary filmmakers shy away from material for fear of getting sued. If we don't do it, everybody is screwed.

    Nina notes her use of songs increases value. Jonathan says he wants to control message. If he trashed Buffy, avenue would be closed. It's not about money, it's about control, Nina said. If you negotiate with them, corporations control the message.

    Question as license holder attorney– how can do better?

    Elisa notes that YouTube has a bot, picking up song in the background of a video. Got a takedown notice about it. Vidders are always getting taken down. She runs site with Jonathan. She finds country-specific takedown notices. YouTube eliminating work because of music.

    Matt Schruers from Computer Communications Industry Association asks whether want less restrictive copyright.

    Nina says copyright is a monopoly, bad for everyone, bad for culture. She understands copyright. Broadcasters won't allow movie to be shown w/o documenting each clip. Owning speech and owning expression is very bad for culture.

    Jonathan disagreed. Sometimes is potential for bad uses, like hate speech. Creators should be able to stop use of material for racist uses.

    Nina calls that the “Nazi porn” argument. How far will it go? Hate speech won't get that far. If Nazi version of Sita gets billions of views, who am I to stop that? Audience not promote twisted hate speech, not worth it to stop.

    Jonathan wants recourse for those marginalized already. He's talking about homophobic, lots of that on YouTube, also sexist material. How are they protected? Time for the panel to end.

    Start of Fair Use Day

    Fair Use Day is under way. PK President Gigi Sohn is telling the crowd that fair use is making a comeback. We'll have artists, remixers and others who really use fair use. they are the “real artists.”

    Thanks to sponsors, Warhol Foundation, Google, Consumer Electronics Association.

    First speaker, Rep. Mike Doyle, D-PA, sponsor of community broadcasting act, member of the House Energy and Commerce Committee. His bill will open up new radio opportunities.

    Doyle mentions hearing on the future of radio, how his staff discovered Gregg Gillis, better known as Girl Talk, from Pittsburgh. Doyle talked about how Girl Talk blended Beyonce, Jimi Hendrix and others in one 30-sec. clip. Youngest people in audience at hearing knew what he was talking about. Most of them didn't.

    He met Gillis, talked about how some think he's committing piracy. Gillis talks about how clips are 2 sec. long. GT wants contribution to artists,but should be in line with situation. That was Doyle's intro to the topic of fair use.

    He ripped songs from his CD collection to his iPod.

    Five years ago, college students thought iPod was biggest thing on campus, tied with Facebook and beer. FB relies on fair use when mention his work, scraping of content is under fire today. Threat to fair use — imagine world w/o it. How would know if not for search engines.

    Murdoch furious at Google for fair use. Wants legal theory overturned. Saw TechDirt feature on newscorp web sites about how Murdoch's sites scrape info from other sites also. Fox News being sued for infringement on Michael Jackson interview. It wants fair use in that case.

    Murdoch's example proof copyright industries are fair use industries. Tech relies on fair use. Some estimate fair use exemptions contribute $2.2 trillion to economy.

    U.S. Trade Representative negotiating anti-counterfeiting trade agreement — it's secret. OK if keep out counterfeits, would be widespread agreement. digital content section sparked lots of concerns. Joins with Sens. Sanders, Sherrod Brown, wanting deliberations to be public. Sen. Wyden also wants public.

    U.K. says transparency is crucial to legitimacy of agreement. Lack of transparency is unhelpful, not in public interest. USTR told doyle not require ISPs to be copyright cops. sounds nice, but could lead to three strikes policy.

    I will oppose any effort by congress or trade agreement to cut people off the internet. if pirate music, should be punished. No want constituent who uploaded video of kid dancing to Prince had to sue. That not count as strike. Internet access critical to kids education, literacy important, hate for one child's mistake to punish rest of family, he said. No want family with viruses to get kicked out.

    We should talk about expand digital access, not take away, Doyle said. At WIPO, U.S. delegation had new exemption proposals for blind. He wants better enforcement of copyright law, as U.S. does.

    He agrees.

    Q: to doyle. How tech savvy is average congressman?
    A: Across the spectrum. Lot of members very tech savvy, some that don't use Internet or Blackberry. Doyle says he's interested, wants to learn new technology.
    q: if not use technology, under the spell of lobbyists…
    A: When you say fair use to House colleagues, most say they don't know what fair use is. He got interested in issue because of Gillis, happened at the grass roots level. Need to explain to Congress why important to company and economy. Need to hear from more than big companies.

    Here's question from Gigi: She said MPAA wants more open ACTA, why isn't it?
    Doyle — if see agreement, need to sign a non-disclosure agreement. He's curious whether member of Congress saw terms, if could offer legislation. He's for putting in public forum.

    Gigi asks about community radio bill in senate — concern broadcasters get a senator to put hold on bill. Hope to get done this year.