Week 7 – About “Fair Use” by Patricia Aufderheide and Peter Jaszi

In my last post about Free Ride by Robert Levine (2011), I ended up encouraging the use of education as a possible solution to reduce the spoil caused by piracy on content protected by intellectual property rights.  Imagine my surprise when I read Fair Use, by Patricia Aufderheide and Peter Jaszi, a manual that promotes both self-education and exercise of fair use rights. It has been a very pleasant reading mainly due to the educational encouragement that the work exudes. Once again, I will try to focus on three aspects that caught my eye: fair use in an international context, the individuality of each case in fair use, and the necessary distance one should take from the “politics of the victim” (about fair use or any other matter.)

First, I was able to learn more from an aspect of the US copyright law that I have not been very familiar with until this term, given that in my home country we do not have such thing as fair use. To the best of my knowledge, the authors are right when they refer to similar international practices in non-Anglo European countries to use copyrighted material (Chapter 10, pp. 149-151.) I can assure you that a high school teacher in Spain is safe using copyrighted content in the classroom, as long as there is noncommercial intention and citations are provided. It is easy to understand how a different worldwide legislation about intellectual property rights can bring a headache to copyright holders and lawmakers (Chapter 10, p. 152) and to people who travel or move abroad. A similar concern was shared by Levine in Free Ride when he suggests to establish common copyright rules for digital content on the Internet (Levine, 2011, p. 247), although Aufderheide and Jaszi would rather advocate for educated citizens in their rights as best solution (Chapter 10, p. 154.)

As I mentioned, their passion for education is patent throughout their work and is especially notable when they insist in the need to analyze each case of fair use individually with a set of three questions: purpose, proportionality, and relevance in the field (Chapter 2, p. 24). This brings me to the second topic I wanted to comment on. Fair Use contains several references to perform a reflective study of each situation where fair use is claimed to do creative work from copyrighted resources (Chapter 2, p. 24; Chapter 5, p. 78; or Chapter 10, p.136.) There is even a whole section where answers are given (Appendix E, pp. 177-185) to an excellent collection of particular cases offered along the reading in the “Fair Use: You Be the Judge” text boxes. And all of them require the same individual approach because generalizations, although necessary to grasp the big picture, are useless without reflection as they also demonstrate with the “Myth and Realities about Fair Use” section (Appendix E, pp. 173-176). This is possibly one of our most difficult missions as educators: teach our students to be reflective thinkers, and this topic of intellectual property rights is a great opportunity to practice with our students.

Finally, another excellent source for a teachable moment comes with their commentary about the politics of the victim and the risks they represent (Chapter 4, p. 68-69) Today is very frequent to find, especially in politics and journalism, examples of people who try to capitalize on a victims cause and label anything against it as wrong (Chapter 4, p. 69). The authors show the early opinions of Lawrence Lessig for his “all or nothing” position in free culture (Chapter 4, p. 65) to illustrate the black-hat vs. white-hat paradigm in fair use, although they admit he has moved lately to a more moderated position. Our young students are usually very emotional and this kind of manipulations can be very effective. Therefore, here we have a further educational opportunity to discuss with them these situations that lead to “A is good, B is bad” when a more particular analysis might guide us to a more balanced opinion, like happened with Lessig after 2010 (Chapter 4, p.66.)

I would like to conclude expressing my reinforced commitment with education as a driving force to overcome difficulties. Issues like dealing with intellectual property rights and fair use require creative solutions and knowledgeable users, which is something new generations will have to face. Their success will depend on their previous, present, and future education.

 

PS: Yesterday, I run into an idea Nintendo came up with to profit from remixers who post videos in YouTube. We were discussing this on our last post about Free Ride by Robert Levine. The article was published yesterday, May 16, 2013, by BBC News with the title “Nintendo to profit from user videos posted to YouTube” (no author provided):

http://www.bbc.co.uk/news/technology-22552756

 

References:

Aufderheide, P., & Jaszi, P. (2011). Reclaiming Fair Use. Chicago: The University of Chicago Press.

BBC News (May 16, 2013). Nintendo to profit from user videos posted to YouTube. Retrieved from: http://www.bbc.co.uk/news/technology-22552756

Levine, R. (2011). Free Ride. New York: Anchor Books.

Week 5 – About “Free Ride” by Robert Levine

Before reading Robert Levine (2011), I was already seeing the controversy coming in the title: Free Ride. The character of the “free rider” is well known in economics  when it comes to study public goods and services (Screpanti & Zamagni, 2005): there are always people who consume or make use of a public good or service and not paying for it. It is not easy to deal with “free riders”. Basically, we can (a) cancel the supply, with the consequently prejudice to the majority of “non-free riders”; (b) do nothing about it, which usually encourages others to become “free riders” too; or (c) try to reduce or eliminate the number of “free riders”. It is obvious that the preferred solution should fall into the last category, but each possible strategy here (and there are many) presents its pros and cons. Otherwise, issues like the intellectual property copyright will not be a matter of discussion.

Levine carries out a documented analysis of the “free rider” problem in the media industries whose revenues and survival have been deeply affected by piracy (or “free riders”) since the Internet appeared in scene (Introduction p. 6.) In this post, I will comment first on his overview of the evolution of the media industry; secondly, and as a result of this evolution, I will refer to a very important point he makes regarding the technology titans that have emerged since then; and lastly, I will conclude highlighting the, in my opinion, unobserved consequences of his proposed solutions to fight against piracy or, in other words, measures lying on the last category mentioned in the previous paragraph.

The first class I took at the MSEd program was CSE 689 Emerging Information Technologies with Dr. Mary Bucy, where we had the opportunity to confirm how every dramatic change in technology has usually terrified the controllers of the “old” tech. Quite frequently, those who criticize the changes produced by the new technology are well established on the use of an earlier one, and the foundations of controversy are related to what social group benefits from the new technology –economically speaking in most of the cases– and what social group is menaced by it. All these ideas came to me when Levine goes over the changes media industries have suffered (Introduction, pp.1-3) and their loss of profits since Internet era arrived. Multitude of money figures from market values and potential losses are provided in the industries of music (Chapter 2, p.37), newspapers (Chapter 4, pp.111-112), TV series (Chapter 5, p.153), publishing (Chapter 6, p.161), and movie pictures (Chapter 7, p.173.) Levine is right to point out that piracy is hurting these businesses. In fact, the previous authors we have read in the previous weeks, Lessig (2008) and Boyle (2008), both favor the idea of copyright as a fair reward, ergo piracy should not be tolerated. I also believe a great deal of blame can be put on piracy; however, it is surprising for me to see how Levine acknowledges the change of paradigm in the delivery of content through the Internet (Chapter 2, pp. 49-51) but does not stress the lack of foresight in some of these business models to confront the mentioned change of paradigm. Today we are witnessing how traditional companies are still changing their business models to make money in this new online economy, which is the real issue Free Rider is about, in my opinion. For instance, The Washington Post joined last March the list of newspapers that charge for content:

http://articles.washingtonpost.com/2013-03-18/business/37806172_1_paywall-digital-products-web-site

The turmoil in the media industries and the evolution of content distribution turned into a breeding ground for many technology-related companies to emerge and profit from piracy and the free content available in the Web.

In fact, the second idea I would like to comment is precisely Levine’s analysis of the new legal and powerful technology-based companies that have appeared since the Internet arrived. I have to admit it is my favorite part from Free Ride. He cites Michael Wolf stating how companies like Google represent the free and open movement but at the same time “controls almost completely the openness” (Chapter 10, p. 244). Google, Facebook (Chapter 3, p. 104), and Amazon (Chapter 6, p. 169) and their subsidiaries (like Flickr or YouTube) are examples of companies that are concentrating enormous power in the sharing and distribution of free content (Chapter 10, p.253). Levine exposes his concerns which are shared with advocates of free speech and privacy, like The Electronic Frontier Foundation (Chapter 3, p.81). I do not blame these companies for their business models: we live in a capitalist economy which rewards those who offer goods and services demanded by the consumers. Nonetheless, I find really wise in Levine to point out that the concentration of power gathered by these companies are turning them in near-monopolies, like happened with Microsoft in the PC business (Chapter 10, p. 244). Therefore, an eye should be kept on them to prevent the potential abuses that can occur. As a matter of fact, there has been news that exemplifies well these concerns. An analysis by William F. Barker in The Nation newspaper from Jan. 23, 2013, about the algorithm used by Google to rank the news, can serve as an example:

http://www.thenation.com/article/172378/googles-monopoly-news

And last but not least, allow me to analyze briefly some of the consequences of a couple of Levine’s proposed solutions to fight against piracy: enforcement (Chapter 9, p.236) and establish a “blanket” license (Chapter 9, p.234). Both can be considered discouraging measures and both are double-edge solutions. The problem I see with enforcement is that requires to fuel funds to control and prevent piracy, and my guess is it will be publicly funded by a whole to benefit a fraction of for-profit industries. Besides, it will create a “police” state Web-like vs. “pro-piracy organized” groups, and some of the regulations will have the rest of users as hostages (see my last post about the CISPA law.) On the other hand, a “blanket” license, i.e. a fee added to the Internet service cost, will alter the nature of the public good or service (here, free culture) and, what is more important for many, can imply that a majority must pay again for the misconduct of a few. As I mentioned above, the solutions are not simple. My personal bet would be to educate, especially the youngest, in responsible online practices. As a teacher, I strongly believe in the power of education to embed values of respect in everything we share and enjoy as society. It will take longer to implement than the measures proposed by Levine but it will pay off in the long-term. Unfortunately, I know companies must respond to shareholders in the short-term.

I would like to end pointing out the difference of focus between Levine and the previous authors, Lessig and Boyle. While the former agrees with them in the coexistence of free and copyrighted content and the need of a more flexible copyright system (Chapter 10, p. 247), his analysis is centered on the economic losses of the traditional media industries due to piracy.  Lessig and Boyle placed their focus on the cultural losses instead. It is hard to find common ground if their priorities, although both legitimate, are different. It is easy to know what Levine is up to from his initial quotation in the book, the art. 27 of the Universal Declaration of Human Rights (1948):

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”

True, but Levine (purposefully?) only quotes the second part of the art. 27. The first one states:

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”

Nobody said this would be easy to fit together.

References:

Barker, W. F. (2013, January 23). Google’s Monopoly on the News. The Nation. Retrieved from: http://www.thenation.com/article/172378/googles-monopoly-news

Boyle, J. (2008). The Public Domain. New Haven & London: Yale University Press.

Lessig, L (2008). Remix. New York: The Penguin Press.

Levine, R. (2011). Free Ride. New York: Anchor Books.

Mufson, S. (2013, March 18). The Washington Post to Charge Frequent Users of its Web Site. The Washington Post. Retrieved from: http://articles.washingtonpost.com/2013-03-18/business/37806172_1_paywall-digital-products-web-site

Screpanti, E., & Zamagni, S. (2005). An Outline of the History of Economic Thought. New York: Oxford University Press.

Universal Declaration of Human Rights (1948). Art. 27. Retrieved from: http://www.un.org/en/documents/udhr/