Spotlight on Digital Media And Learning

7.7.10 | In 1991, a New York Federal Court ruled that rapper Biz Markie had unlawfully sampled from Gilbert O’Sullivan’s “Alone Again (Naturally)” on his album, “I Need a Haircut.”

That decision changed the long-held hip-hop practice of using copyrighted samples without permission. In mocking tribute, Markie named his next album “All Samples Cleared!” and put a white-wigged judge on its cover.

The world has changed considerably since 1991, so it would stand to reason that copyright law would have changed with it. But reason has little to do with it.

“It’s not like Congress has refashioned copyright law to take care of changing generational standards,” says Jaime Wolf, an intellectual property attorney at Pelosi, Wolf, Effron & Spates in New York. “The law isn’t evolving, but practices are.”

The past decade has seen the rise of a vocal movement that champions greater latitude in reuse and remixing, a position that stands in direct conflict with a Supreme Court decision that allowed major companies to extend the life of copyrighted material by 20 years. The ideological debate between those two sides has taken a back seat to what’s happening on YouTube, where millions of people have posted videos using songs, video clips or other unlicensed material.

In many ways, it’s what’s happening with YouTube and similar sites that really matters for a generation that sees the world of remixing and copyright differently because they’ve been sharing files and downloading media for free since practically the day they were born (or at least they day they logged on). And, Wolf says, nobody has taken it upon themselves to say, “Here kids, this is how you should be thinking about copyrights.”

To avoid lawsuits, YouTube has used the “safe harbor” provisions of the 1998 Digital Millennium Copyright Act by using a filter to catch all use of copyrighted material owned by major media organizations and to automatically notify license holders of potential infringement. The software also usually triggers an automated cease and desist letter from companies like Universal or Disney to users who post licensed content.

According to Kevin Driscoll, a fair use advocate and PhD candidate in the Annenberg School for Communication at University of Southern California, that process is poorly suited to dealing with the problem at hand.

“Filters are crude, and software can’t be sophisticated enough to filter for fair use,” Driscoll says. “That can only be determined by rational human beings.”

Wolf agrees, explaining that music publishers are like toll takers, “They don’t see a difference between the cars. They just want you to pay the toll.”

Living Room Rock Gods Take It to the Man

In an example of the overgeneralization of algorithms, in January 2009, Warner music removed thousands of YouTube videos in what the Electronic Frontier Foundation called “the fair use massacre.”

For most individual users, there was little they could do but send a letter arguing that their use was not infringement. But, for the Living Room Rock Gods, it was a call to arms.

A group of music fans and amateur musicians who post videos of themselves playing along with favorite songs, LRRG has shot hundreds of videos. Almost all members are major fans of the bands whose music they’re playing.

On that fateful day in 2009, Warner took down dozens of LRRG videos. But, unlike the individual who may have posted one or two videos (and did so in a seeming vacuum), LRRG had a community. Soon LRRG members were posting on message boards about their experience, educating themselves about copyright law and fair use, sharing information, writing letters and putting together a campaign known as Tribute is not Theft.

Simply put, they galvanized a loosely organized interest group into an online political force. By sharing information and banding together, many have had their videos reposted online—and they have taught others how to put together an effective challenge.

A Third Way?
Creative Commons offers another way of dealing with copyright. Founded in 2001, Creative Commons grew out of Harvard law professor (and Creative Commons founder) Lawrence Lessig’s argument before the Supreme Court in Eldred v. Ashcroft, a case that challenged the constitutionality of The Sonny Bono Copyright Term Extension Act, which added 20 years to most existing copyrights. It was the primary outpost of what Jaime Wolf calls “the copyright left.”

“It started out as kind of a neat, somewhat academic idea,” says Creative Commons CEO Joi Ito. “It was political. It was a movement.”

Over time, Creative Commons became less political and evolved into something else: a solution of sorts for the increased importance that copyright law plays in our lives.

“One thing that’s changed significantly is that you can’t interact with media without triggering copyright law,” Ito says. “Before, the average person – even if they wanted to – probably wasn’t running into it. Now, if you sit at your computer and go online, you are having some kind of interaction with it.”

Today, Creative Commons provides legal and technical tools that help artists share their work without weakening or giving up their right to protect it. The group also assists individuals in accessing those same works without incurring legal consequences. Creative Commons currently has more than 350 million pieces of content under license.

“We don’t promote piracy, and we’re not anti-copyright,” says Ito. “We are built on top of copyright and want to lower the friction so that people don’t have ask for permission every time.”

Under a Creative Commons license, artists can specify exactly how and when they will allow use of their work. The options serve the interests of both the artists and those who want to remix the content.

For Nine Inch Nails, this meant releasing their 2008 album, “Ghost,” under the Creative Commons license, which allows remixing and file-sharing, but also includes a share-alike stipulation that fans must “share back” their creations with the band. The agreement allows fans to retrieve content for little or no cost, which forges a stronger bond with the band, while the remixes increase the buzz around the music.

“For musicians, fans are more important than anything,” Ito says. “Showing them respect is an important message for musicians to send.”

This arrangement works nicely with what Ito says is the new model for making money in the music industry, where rather than earning little bits of money from a lot of people, bands give away their music for free, but are able to make a profit from a small number of hardcore fans paying larger sums for a more direct connection with the artists.

Despite not charging for their songs, Nine Inch Nails made $1.6 million in the week that “Ghost” was released by selling a wide range of premium content, ranging from $5 to $300 for limited edition boxed sets.

And whether you’re a rock star like Trent Reznor of Nine Inch Nails or more likely to be imitating him in your living room, one thing is clear: More and more people will be bumping up against copyright law. Creative Commons is trying to apply reason to what often seems an unreasonable area of the law.

“We’re like the user interface for copyright,” Ito says. “Copyright law is really hard. People need to think about what they mean when they say, ‘go ahead and share it.’ In a legal way, and in a human way, so people can understand what you’ve expressed.”