 Fri, 18 May 2012 19:39:00 PDT
Indiscussionsabout artists like Amanda Palmer using Kickstarter, plenty of people continue to insist that their success was made possible by their traditional industry backgrounds. We've already gone over lots of reasons why this is silly, most notably the fact that such artists do alotof work and certainly don't coast on anything. But it also usually ignores the artists themselves, who more often than not clearly say that they are going it alone because traditional structures wereholding them back. The fact that creators who have received some amount of benefit from labels/studios/publishers decide to move on anyway, and then see their careers grow, doesn't saylessabout platforms like Kickstarter, it says even more. This sentiment is not limited to music, or to independent creators. Kickstarter is getting a lot of attention, and that's bound to attract bigger and bigger names. The latest, sent in byjtomic, isa feature film calledThe Canyonswhich involves some pretty serious Hollywood talent. The script is written by Bret Easton Ellis (author ofAmerican Psycho) and directed by Paul Schrader (as in,the guy who wroteTaxi Driverand the screenplay forRaging Bull). Ellis, Schrader and the producer are putting up a bunch of the money themselves and turning to Kickstarter for the rest—all because they want to escape the confines of Hollywood: The film is a collaborative effort stewarded by former Lionsgate producer Braxton Pope as a response to the changing landscape of the film industry. Pope, Ellis and Schrader are partly financing the film themselves through Pope’s new company Sodium Fox in order to maintain complete creative control of the distinct source material. According to Schrader,“We all experienced the frustrations of financing and institutional censorship. But now, with advances in digital photography and distribution, we can tell a story in the manner we choose. Movies are changing and we’re changing with it.” They expand on this in the video, which includes some excellent comments from all three creators. Pope talks about how the Hollywood process encourages "groupthink" and makes it hard for a film to stay true to the artists' vision. Schrader and Ellis both compare the current revolution in film to that of a hundred years ago when the medium was in its infancy, and are clearly excited about the prospect of making a film without notes from meddlesome studio execs. There are some pretty cool funding tiers too, many of which are unsurprisingly sold out. The cast itself is being largely crowdsourced through an online audition platform, netting undiscovered talent from around the world, and anyone who pledges at least $10 gets to vote on finalists. For $500, Ellis and Pope offered to watch your short film and share their honest reactions (with links) to their followers on Twitter& Facebook (all 10 slots for that one are already sold out). For $1,500 they'll do the same with a feature-length film. For $5,000, Ellis reviews your novel (again, sold out) or Schrader gives you notes on your script (a few left at time of writing). One lucky backer has already snagged the single $10,000 "De Niro's Money Package", which comes with a money clip autographed by Robert De Niro and given to Schrader on the set of Taxi Driver. So there can be absolutely no doubt that these guys are using their momentum from the traditional Hollywood system to make this project possible—but I'm at a loss as to how that says anything good about Hollywood. I doubt any of these creators had any realneedto finance a film themselves, but they saw a growing opportunity to go directly to their fans and make movies the way they really want to make them, and they jumped on it. That's not coasting on the past—it's embracing the future.
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Fri, 18 May 2012 18:29:00 PDT
Here is Part II of our excerpt from Chapter 1 ofReframing Fair Useby Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can readPart I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.
Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of itsinterpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to thescene, and has become a sturdy tool for a wide range of creators and users. This transformation hasbeen remarkable; we discuss it in detail in Chapter 5, and provide highlights here.
It happened in part because of changing scholarship. A generation of legal scholars has developedarguments for fair use as they have analyzed copyright’s effect on cultural expression. At the sametime, cultural studies scholars have showcased the relevance of fair use to their work, which ofteninvolves analyzing popular culture. Teachers and scholars are beginning to take up the fair usebanner, publicly using their rights and encouraging their students to do the same.
Settled, established communities of creators, administrators and users—filmmakers, teachers ofEnglish and visual art, librarians, makers of open course ware, poets, and dance archivists--haveidentified fair use as a necessary tool for them to use to achieve their missions. They have turnedto the sturdy tool of consensus interpretation, by making codes of best practices in fair use throughtheir professional associations.
Members of these communities have become active advocates for fair use. Their organizations andrepresentatives have appeared before the Copyright Office to testify about the way that the DMCA,which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use intheir work.
Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When theyreceive takedown notices on YouTube, they issue counter-takedown notices and explain why theiruses are fair. Remixers have also gone before the Copyright Office to protest the way that theDMCA impedes their creations, which are often socially critical.
New businesses have flourished employing fair use, and their trade associations have supportedthem. Google, the Consumer Electronics Association, and the Computer and CommunicationsIndustry Association have all advocated for fair use. Legal and professional services for communitiesof practice, such as lawyers and web developers, have built their fair use expertise to serve theirclients better.
Think tanks and advocacy organizations have promoted fair use. The Electronic FrontierFoundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center forthe Study of the Public Domain and the Stanford Fair Use Project have all taken action onfair use.Between the scholars, the creators, artists, and organizations, fair use is emerging out of atwilight existence where, for decades, it had lived. During those decades, many professionals andespecially professionals in the corporate media environment—whether broadcast journalism, cabledocumentary, or newspapers—routinely and extensively employed fair use. But if you weren’t aprofessional, you might not even have heard of it. That has changed.
The goals of various actors in this resurgence of fair use differ. Some simply want to assert theirrights to be able to improve their work, lower their costs and start or grow new businesses. Somewant to expand the sphere of freedom of expression, so that copyrighted culture does not becomeoff-limits for new work. Some believe that an expansion of fair use rights is imperative both to keepfair use as copyright policy is tinkered with, and to maintain the crucial principle of balance betweenowners’ rights and the society’s investment in new cultural creation. Some believe that fair use,exercised to the maximum, will provide concrete experience of the limitations of today’s copyrightlaw, and point to more effective change. They all share a common understanding that individual andcommunity action simply to assert their rights has an immediate and long-range effect on marketsand policy.
The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S.and world-wide, critiquing the most stifling, confining features of copyright practice today. Thatdiscourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, thoughit still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). Thepeople in this discourse share an acute awareness that copyright policy and practice are tilted unfairlytoward ownership rights, in a way that prejudices the health and growth of culture. This broaderdiscourse is evident in many ways, besides the efforts to make fair use more useable: proposals forformal copyright reform; efforts to create copyright-light or copyright-free zones or to expand thepublic domain; and civil disobedience.
Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholarPamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines asimpler, shorter copyright law, grounded in principles rather than the“obese Frankenstein monster”it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed arange of tweaks to pull back the extent of copyright protection, such as limiting copyright lengthand dropping protection against the preparation of derivative work, so that less licensing is needed.Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.
Some people offer suggestions to improve the efficiency of licensing, which today is messy,clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (orcompulsory) licensing schemes, such those that allow today for the retransmission of TV signalsby cable and satellite systems. Others have suggested new voluntary digital platforms throughwhich users could make“micro-payments,” tiny payments for each individual access to copyrightedmaterial offered commercially. Legal scholar William Fisher has proposed a voluntary collectiveadministration system, akin to those that today enable public performances and broadcasts ofmusic, and to collect licensing payments through Internet service providers and distribute themto copyright owners and artists whosematerial is used online. Some copyright owners, includingthe Association of Commercial Stock Images Licensors, are even toying with how to restructure their ownlicensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.
The ideas and projects all respond to the real problem that copyright law now fits ever more poorlythe way people are actually making culture. They may well take some time to become useful, though.The big stumbling block both to fundamental copyright reform and to licensing reform is that largecopyright holders—key stakeholders in any change in licensing schemes—are not able to agree onwhat they would like to do. They do not know what business models will be most relevant in a fewyears, so living with a lumbering, archaic licensing system with a lot of holes in it looks better tothem than change that might have unanticipated downsides. As major stakeholders in any legislativereform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, untiltheir interests shift with shifting business models. As major actors in licensing, they will collaborateon new methods of licensing when they understand how emerging business models favor theirinterests.
Another part of this broad copyright critique is a range of efforts to expand copyright-free andcopyright-light zones, discussed by David Bollier and James Boyle. People in this arena ofteninvoke the phrases“the public domain,”“open access,” and“Creative Commons.” Projects suchas open source software (collaboratively created and freely offered software), open source (freeand accessible to all) academic and scientific journals and databases, and OpenCourseWare (freelyavailable curriculum materials) offer such alternative zones. The various Creative Commons licensescontribute to this alternative zone by offering a way for creators to give their work away more easily,although with conditions, by labelling it appropriately.
These efforts have indeed created significant copyright-light zones, as well as creating enormousenthusiasm for a more flexible copyright policy. They work well for people who want to give theirwork away and share it without economic reward. A pool of noncommercial works now exists, butit is tiny compared with the field of copyrighted and often-commercial work. Viacom and NewsCorp will continue to copyright their holdings and treat them as assets. The existence of copyright-light zones, however large, does not address the frequent need that people have to access masscommercial culture to make new cultural expression.
Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting ofcopyright law by“culture jammers,” pranksters and appropriation artists. Burkart describes thiswork as part of the incipient and still-inchoate cyberliberties social movement, taking up“the politicsof symbolic action,” typically“weapons of the weak.” These people and groups—Negativeland, theYes Men, Adbusters magazine and others—position themselves on the margins of official culture,and see themselves as reclaiming culture one image or gesture at a time. They also see themselvesas challenging the terms of long and strong copyright. Ironically, many times the uses they make ofcopyrighted material are actually completely legal fair uses.
This broad and diverse discourse calling for changes in long and strong copyright thus has manyfaces and approaches, each with opportunities and limitations. They add up to a broad publicawareness of trouble around long and strong copyright. Within this discourse, efforts to make fairuse more useable standout because they can be done now, by people in many walks of life; they canbe publicized and celebrated, thus spreading the word; and because using this right expands its rangeof uses.
Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics.Some regard it as hopelessly compromised because of technologies such as encryption, whichoverride a user’s will to excerpt. Some believe that exemptions such as fair use are good but thatfair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes toomuch of the status quo, and that another copyright-free world is possible. One way that concernis expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it toaccomplish our goals.
In fact, under the current interpretation, fair use does apply in a wide variety of situations. Theyrange from making copies of TV programs on our DVRs to creating digitally annotated critical textsto making an archive of the worst music videos ever to making relevant curriculum digitally availableto students. Fair use has evolved, having different functions at different moments in U.S. history.Today it has an ever-growing importance and value within copyright, as a primary vehicle to restorecopyright to its constitutional purpose, and the transformativeness standard assists in creating thatvalue. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open;vigorous exercise will not break fair use.
Fair use will continue to be important, no matter what the success of other aspects of long andstrong copyright protests and proposals. Even if we could wave a magic wand and execute reformof copyright policy that rolls back some of the longest, strongest terms in copyright policy, fairuse would still be an important tool to free up recent culture for referencing in new work. Evenif licensing were much easier than it is today, it would never address all the needs people have foruse of copyrighted material. Even if copyright-light zones vastly expanded, the need to access thecopyrighted material existing outside those zones without permission or payment would still remain.Sometimes people need to use materials that the copyright owner simply will not license to them.Fair use will be important to anyone working in the cultural mainstream. Culture jamming can befun, although some culture jammers are actually just employing their fair use rights without knowingit. But most creators, teachers, learners and sharers of information don’t see themselves as criminalsor pirates, and don’t want to.
Reclaiming fair use plays a particular and powerful role in the broader range of activities thatevidence the poor fit between today's copyright policy and today's creative practices. In aworld where the public domain has shrunk drastically, it creates a highly valuable, contextuallydefined,“floating” public domain. The assertion of fair use is part of a larger project of reclaimingthe full meaning of copyright policy—not merely protection for owners but the nurturing ofcreativity, learning, expression. Asserting fair use rights and defending the rights of others to usethem is a crucial part of constructing saner copyright policy.
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Fri, 18 May 2012 17:27:00 PDT
When it comes to ACTA and TPP, China is the elephant in the room -- or maybe that should be the dragon in the room. For without China's participation, these treaties designed to reduce counterfeiting will have little effect. And despite rather desperate optimism on the part of some that China will rush to sign up, itscommentsso far suggest otherwise. A crucial factor here is China's own copyright framework, since this will inevitably color its perception of the terms of any treaty that it might sign. That makes the outcome of a planned third revision of its copyright laws highly pertinent to the fate of treaties like ACTA and TPP. A paper reviewing the current proposals, written by Hong Xue, Director of the Institute for Internet Policy& Law at Beijing Normal University, provides some valuable insights intothe likely evolution of China's copyright law. Unfortunately, the signs are not good:the Draft fails to review several misconceptions, such as "the more the better" (more copyright protection and enforcement, the better economic growth and social development), "one size fits all" and "modeling on US law" (on draconic enforcement rather than general and robust limitations and exceptions). It is unfortunately that China, the largest country by both population and Internet users, despite its fast-growing economy, seems keeping on the old track and missing the opportunities to revamp its Copyright Law in the new century. In the area of limitations and exceptions, the latest draft makes things worse than today's rules:According to the [current] Copyright Law, anyone may use a work for personal study, research and appreciation. The Draft, however, restrict the scope of private use to "making one copy of a work for personal study and research." It is annoying to exclude from the private use personal "appreciation", which is inherentlyhard to distinct from personal study and research, particularly on the Internet. It is even more worrisome to restrict private use to reproduction of a work. Under the Copyright Law, use of a work may include reproduction, translation, adaptation (such as remix or sampling), as far as the use is private. The Draft, however, only allows for reproduction and restricts to one copy. That's crazy at a time when more and more people are using digital content in new ways that include precisely these things like remixing, sampling and adapting. There's also bad news on the DRM front, which seems closely modeled on the US DMCA:The biggest defect in this regard is that the Draft fails to address whether technological measures may be circumvented for the specified circumstances of limitations and exceptions to rights. For example, it is unclear under the Draft whether a user may circumvent a copy-protection measure on a work so as to make a single copy of work for personal study or research. That's clearly a crucial issue. If circumvention is not allowed, then once again DRM can effectively take away what few rights users are granted in this area. Finally, China also appears to be following the US in bringing in harsher copyright enforcement and disproportionate damages:Copyright enforcement is tremendously enhanced under the Draft. Regarding civil remedies, damages could be several times of licensing fees if right holder’s actual loss and infringer’s illegal gains cannot be determined. All-in-all, it looks like China has learned nothing from the West's mistakes. Instead, it seems to have taken the misguided view that if the West did it, China must do the same to "catch up". As the paper quoted above emphasizes, this is only a draft, and can still be modified. But based on what it already contains and the fact that organizing resistance against new laws in China is not the easiest of tasks, it looks increasingly likely that China too will be entering a period of copyright maximalism, with all the negative consequences for the Chinese public -- and possibly the world -- that this implies. Follow me @glynmoody onTwitteroridenti.ca, and onGoogle+
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Fri, 18 May 2012 17:00:00 PDT
The weather is warming up, and backyard barbecues are getting dusted off. What's easier to grill than a good old hot dog? Absolutely nothing. Here are just a few links to get you in the mood for some delicious dogs.By the way, StumbleUpon can also recommend some goodTechdirtarticles, too.
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