Video Wants To Be Free And Open Too: IP Policy Considerations

Video is becoming an increasingly important communication tool on the web, but questions must be asked about its future, said speakers a recent conference. Will it be a medium of self-expression, available for all, or a translation of television to the internet, where content is provided by some and consumed by the rest? A gathering of technologists, academics, filmmakers and others in New York last week issued a call for a freer video culture.

Speakers at the 19-20 June event, taking place at New York University Law School and streamed live online (remixing encouraged), talked creative expression through the video medium, played favourite examples, and warned of intellectual property-related restrictions they say threaten to quash such expression.

The three questions to ask are: “Is the technology transparent and open? Can people participate in a meaningful way? Can they innovate and remix without permission?” said Mark Surman, executive director of Mozilla Foundation, which provides support for open source software projects including the web browser Firefox. For Mozilla, he added, “the answer to all three must be yes.”

Meanwhile, a few days earlier up the street at the Crowne Plaza in Times Square, advertisers and marketing experts talked advertisement money – or the lack thereof – in online video content at the 16 June OMMA Video event, hosted by publishing and content company MediaPost. That event’s live blog revealed nervousness on the part of key industry players over how the ad-supported model will survive online, as well as a lot of uncertainty about what new models can succeed as more and more content moves online.

The Power of Pirates; Small Creators Sing the Blues

At the Open Video event, author Matt Mason argued “one of the best ways to grow your business is to give pirates the space to innovate on your ideas.”

“Copying,” he said “is one of the reasons that the fashion industry is so dynamic.” Because three-dimensional clothes cannot be protected, slight modifications by several different designers is what gives rise to a trend.

The key is to make piracy work for you, said Mason, whose book The Pirate’s Dilemma argues that piracy can also be a business opportunity.

For example, he said, a band by the name of Guyz Nite released on video-sharing site YouTube – in response to the release of action movie Die Hard 4.0 – a song that humorously summarised the first three movies. It generated millions of hits before the legal department at 20th Century Fox, which owns the film, had it removed on charges of copyright violation. A few weeks later, Mason said, the marketing department heard about the video, and contacted the band to ask how much they would want to be paid to put the video on YouTube.

“Exceptional thieves” – people who are taking your idea but also adding value to it – are people you “need to compete with and learn from,” said Mason.

Ultimately, “the only way to control your content is to be the best provider of it,” said Eirik Solheim, project manager at Norway’s Public Broadcaster – which provides much of its content free on YouTube and Pirate Bay, where they gain eyes over pirated versions because their releases are higher quality.

“If a record company says you have to drive to the store and buy a record and Pirate Bay tells you that you can just download it at home with one click,” he said, “people take the path of least resistance.”

Further, the current IP system only “benefits 1 percent of artists, and for the other 99 percent it’s a clamp on our freedom of speech,” said Nina Paley, a cartoonist and creator of the animated film Sita Sings The Blues.

Sita makes use of songs from 1920s jazz singer Annette Hanshaw that Paley said should have come into the public domain by the 1980s, as performance recordings of the songs have done. But retroactive copyright extensions prevented the songs from being released. “I paid a bunch of money to corporations to get [my film] decriminalised,” she said.

But Paley has found a new distribution model as the artist in residence at questioncopyright.org. “I looked back on my history and said ‘does copyright really benefit me?’ and the answer was no,” she said. So she has released the film under a Creative Commons licence where “anyone can see it, share it, remix it, sell it,” and there is a business model that is emerging from this.

Fair Use and the World’s “Largest Army of Amateur IP Scholars”

A lot of people, said Anthony Falzone, executive director of the Fair Use Project at Stanford Law School, “think fair use is limited to situations where you want to critique and discuss.”

But it is not: “transformative use” allows for creativity to be classified as fair use, he said.

But even as the internet “is helping people share … in unprecedented ways,” said Corynne McSherry of the Electronic Frontier Foundation, it is also increasingly “easy to have things taken down,” as content is hosted by service providers who are not the content creators.

“Before 1998,” said McSherry, it was necessary to go to court to have material moved out of public access. “Now, you just send an email.” Artists often do not realise that they can fight back or how to do so, and service providers are stuck in the middle and do not necessarily want to pay a lawyer to look at each case, she said. She encouraged users to stand up for their rights as “fair use won’t be protected unless creators fight back.”

Within software, similar frustrations arose around the 1998 Digital Millennium Copyright Act – which criminalises software circumventing digitally restricted information – and one such programme, DeCSS. Around this issue “a politically significant discourse was made,” said Gabriella Coleman, an assistant professor at the NYU Steinhardt School of Culture, Education and Human Development.

IP law became “culturally meaningful to people,” she said, as it became clear US was willing to arrest programmers under the DMCA. Free and open source software developers started to become the “largest army of amateur IP and free speech scholars in the world,” even while professing “vehement dislike for the law.” While copyright law prevailed, there is still alternative legal discourse that matters, she said.