copyright
YouTube: “Three Strikes and You’re Out”
Nate Anderson at Ars Technica covers what is probably the best cause célèbre I’ve seen for oponents of restrictive copyright enforcement. The article recounts the case of Kevin Lee, a prolific film blogger who used YouTube extensively to publish “video essays” which interspersed his own critical insights with short film clips. Lee’s work demonstrates everything that’s good and noble about the Internet: an unpaid blogger pioneering new avenues of critical discourse, just to share his love of cinema with others. His blog, Shooting Down Pictures, reveals a passionate, intelligent observer documenting his travels through the greatest 1,000 films. Read more about the significance of Lee’s work at The House Next Door.
But all this came to a grinding halt when, after a third DMCA takedown notice was served against Lee, over five hours of his critical commentary was deleted by YouTube and his account closed. I’ve written about what I see as some helpful innovations on YouTube’s part in dealing with copyright, but this “three strikes” rule is absurd on its face. YouTube offers some fair objections to the idea that it should manually review all of these takedown notices, but deleting whole user accounts due to a small ammount of allegedly infringing content is bad for YouTube, bad for free speech, and will ultimately feed the backlash against copyright in general. It’s not even clear that the video that triggered the account deletion was violating copyright; Lee has a strong case that his critical videos fall under fair use protections.
The blame for this doesn’t fall entirely on YouTube, as many of the large rights holders are taking a “shoot first, ask questions later” stance with takedown notices, and of course the DMCA itself encourages this behavior. Any lasting solution will involve a combination of legal reform and consumers creating a shitstorm whenever something like this happens.
[Cross-posted at Emvergeoning]
YouTube and Copyright
YouTube has always had a complex relationship with copyright laws. While the quality of user-generated content for the video-sharing website has always been inconsistent, it was catapulted to popularity largely by virtue of widespread copyright violation on the part of its users. As YouTube weathers lawsuits over this fact, it has also been developing a solution that, to some extent, will allow it to have its cake and eat it too. Google (which acquired YouTube in 2006) has been rolling out a “fingerprint” technology that allows it to automatically find infringing material. What’s interesting about this technology is what YouTube does when it finds the copyright violators.
Recently a friend of mine was unable to post a video because YouTube had determined, automatically, that it used a copyrighted song for the soundtrack. But this is just one possible course of action. A few days ago I received an email letting me know that a video I had posted back in July contains copyrighted material (Donna Summer’s “If You Got It Flaunt It”). But rather than deleting the video, YouTube informed me that the copyright holder (UMG) had opted to leave the content on the site, but will apparently be collecting royalties from advertising shown on the video’s page (read more about the system here).
This policy strikes me as a sensible solution to the problem YouTube faces, and an encouraging sign that we can enforce copyright while also allowing for creative reuse of existing art. Of course this strategy depends on a distribution system that has an incentive to encourage this kind of reuse and an incentive to protect copyright holder’s rights. In many situations, these incentives won’t exist. But the more prevalent they become, the more comfortable people will be with the “free” exchange of culture.
Intellectual Property and Conceptual Art
Detail of Sol LeWitt wall drawing at Dia Beacon (photo by Flickr user stan)
Julian Sanchez took a stab at describing the complex relationship between conceptual art and intellectual property recently on Ars Technica. I think he hits the major issues pretty well, and does a good job describing how they relate to work by Sol LeWitt, John Cage, Terry Riley, and even Glenn Gould (the story of Jeff Koons’ String of Puppies might have been an interesting one to add to the mix).
One of the keys here is understanding that much of the time, intellectual property in the art world is enforced the old-fashioned way: through the arcane systems of distribution and attribution created by the art world itself, independent of the legal system. Part of what protects Sol LeWitt’s work is the fact that the instructions are only part of the “machine that creates the art” — there are also certain installers who know the “correct” way to interpret the instructions. Another part of the equation is the idea of authenticity that separates a “real” LeWitt or a “real” Warhol from the fakes. No self-respecting art institution or collector wants to own or display a fake work of art — even if it is indistinguishable from the real one. Thus, as these artists worked to remove personal identity from the equation, several strategies were devised enforce the notion of authorship in their work — certificates of ownership, authentication boards, etc.
Even while LeWitt was issuing legal certificates of ownership, he insisted that “anyone with a pencil, a hand, and clear verbal directions” could create legitimate versions of his pieces. In this sense, he could be seen as a forerunner of the free culture movement and Creative Commons. Crucially, however, his approach was to make the idea (that is, the non-copyrightable aspect of the work) the essential aspect; whereas, Creative Commons created a set of licenses that intentionally strip away various restrictions enacted by copyright law.
We should keep in mind, however, that LeWitt’s concerns seem to center around the integrity of the artwork, more than ideals of freedom or a gift economy. He later declared that this openness to unrestrained reproduction could corrupt his work, back-pedaling on his earlier idealism. This tension between freedom of use and integrity of work is essential to any understanding of intellectual property; as we refine our laws, and license our work, we should aim to strike a balance, rather than push an ideology.
Google Becomes a Bookseller
Google announced a couple days ago that they have reached an agreement with the Author’s Guild and the Association of American Publishers on their controversial book scanning project. Ars Technica has a good summary of the agreement, but in a nutshell Google is entering the business of digital book distribution in a big way. They will (continue) scan(ning) out-of-print books stored in a number of partner libraries, and make them available via a subcription service. The publishers and authors will earn revenue from long-neglected works, and Google will position itself as a major book distributor specializing in items on the far end of the “long tail.” As part of the agreement, Google is ponying up $125 million to create a Book Rights Registry, which will help track down the copyright owners of these esoteric texts — everyone gets paid.
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