The resounding consensus was No.
My notetaking skills are dialled down at the moment; not sure I've had enough to eat. Certainly not enough coffee. So just a few snippets. Great, great panel - good speakers, good content. One lawyer had one of those voices that would make him an excellent hypnotist: low, calm, comforti- zzz. Huh? Didn't help my notetaking.
"WTF is social media?"
Intro from Denise Howell: social media is… blogs; socially-networked blogs like Vox; microblogs like Twitter; Wikis like Wikipedia; social networking sites (there are 95 listed on wikipedia); social bookmarking like Delicious; and the whole arena of podcasting, given such a boost by iTunes; social sites around audio, video and photos like YouTube and Flickr.
This whole sphere is so popular and prolific that it’s almost impossible to keep track of.
So what is the common, shared factor?
- Really Good Hosting: easy UI for input, upload, and display. Bye Bye ftp, BBEdit, etc.
- Ample Storage
- Easy data search and management
- Aggregation across the data pool: tagging, clustering
- Web-wide distribution (embed, link, share, subscribe). Using the web as your distribution channel.
- Wisdom of the crowd (e.g. Digg)
- Easy conversation: comments, notes, trackbacks.
So these are what we have in mind. Ron will say a few words...
Ron: Last summer before Google bought YouTube, and before Viacom sued googletube, there was a man who sued YouTube first. This moved a mysterious copyright lawyer in NYC (me) to record his thoughts at that time on what this was all about: YouTube Sued! Will Copyright Kill The Video Star? The issues of 10 months ago are identical to the issues now. This video can frame the discussion.
So there has to be expeditious takedown, and they can’t have direct financial benefit from the infringing material.
Sony, in the Betamax case, was found to be not infringing because the VCR had substantial non-infringing uses. Napster hosted everything so couldn’t claim non-infringing. Grokster was p2p so tried to avoid the hosting problem, but Grokster was found to be ‘inducing’ copyright infringement.
In Perfect10 vs. Google, the court described contributory copyright infringement as Actual Knowledge of Copyright Infringement on the system, with specific methods of discovering the infringement.
Is there expeditious takedown?
Are they inducing infringement?
Are there substantial non-infringing users?
Is there direct financial benefit?
Congress decided a subscription fee was necessary to claim direct financial benefit. One off payments, or occasional payments, do not fly.
I hope we can figure out what should be fair use in this media. Instead of YouTube just having to comply with copyright law, they should be saying, we think the following types of use on these videos should be fair use, and we will support this. Let’s go to the mat and defend it.
Fred von Lohmann: will copyright kill social media? No. But it will and has and will continue to define all these services. All the biz models deployed, all the services highlighted by Denise, all of them are basically defined by the DMCA safe harbour provisions for content providers.
Why Blogger exists. [...] Why ads appear on search pages but not content pages. All of these things are due to the DMCA safe harbours.
The law will develop; the business models will adjust to fit. The chief difference between copyright in the online world and the offline world: offline, if you run a bookstore, and that book contains infringing material, you are liable as the bookstore owner. Even though you had no way of knowing that the book contained that content. The same is true of teevee stations. You’re liable. Same for radio. Or people who exhibit motion pics: theatres, distribution companies. All these people face a world where if they make a mistake, they’re held responsible, often to the tune of a lot of money.
In the offline world, the copyright system is one characterized by gatekeepers. Before you can get a film on NBC, you need lawyers up and down the chain to sign off on the possibility that there might be infringing material in there. This means the creativity there is not the full scope of human creativity.
But on YouTube, you see the full scope. Mashups, collage, clips, this is creativity we don’t regularly see in mainstream media, and it’s in addition to the more standard stuff. Because in the online worlds, thanks to DMCA safe harbours, we here have a role of bouncer rather than gatekeeper. "Let them all in, and just throw out the ones identified as infringers". that’s what makes YouTube possible. If it were liable for any video posted by anyone, their lawyers would have to sign off on any piece of content posted. Same for Flickr. Same for Blogger. If that were the rule, we’d have a very different internet.
The thing to keep in mind here is how important the DMCA safe harbours have been in keeping creativity alive. In not turning the internet into television, a world where you have to be afraid in enabling people in creativity. If you’re willing to be sued, you can find an audience. That’s good news? Yes! Because until now, it was never enough. If you have a documentary, or a satire, or a parody, you knew you had fair use. You, the content creator, might be ready to be sued, but the NBC execs, the theatre execs would not carry your movie. But YouTube will (until someone complains, and often they don’t).
Mark (Viacom): I am frequently in agreement with Fred. I think lots of social media sites are influence by copyright. We invest in our content, in which there are a lot of creators. I agree the DMCA is important; and that standards will evolve. I think that the companies and biz models will evolve. A central theme that I have is that I think there is a lot of room for collaboration if we can agree on some shared values. We are investors, content clearers, talent compensators. I don’t think copyright is going to kill social media, I think it enhances social media. We need some sustainable business models. I understand web users want what they want when they want it, and IP issues may not be front of mind. I think most of the players in the process have special sets of responsibilities.
We’re focused on non-transformative, verbatim copies of [our content]. One value we probably share is that there is no real justification for the dissemination of non-transformative verbatim copies that someone has invested millions of dollars in. We should agree that things actively facilitating that behaviour is not something that should happen.
Fred: if you want every YouTube user to be a copyright lawyer, then fine.
Ron: is the transformative, unauthorized, derivative work is so subjective, it’s impossible for the user to figure out where it’s going to fall. The 2LiveCrew, the hairy woman version of pretty woman, was determined to be transformative, even though they’re a commercial outfit. Highly Transformative Use – e.g. using thumbnails for image search – it has to be fair use. If we could get this consistent view, that it is the non-transformative, literal copying – the unlicensed versions – if we could get consensus on that we’d go a long way.
Viacom: verbatim, non-transformative is a different argument from creative, transformative [which I agree should be non-punitive].
Interesting that the Viacom chap thinks mashups should be okay!
It was also interesting to see so much agreement. The panel ran over by 5mins, and they're back-to-back at the moment, so little time for questions; one has to ask, in a digital world where content can move freely, is it even comprehensible to attempt to educate millions of people on the vagaries of copyright law(s)?
Something I've found recently fascinating: last year, during its Creative re-imagining, the BBC had a concern that it would not be able to afford to compete with the quality of US drama, because of the cost required to produce such drama.
What seems to be actually playing out is that the BBC can afford to produce top-notch drama like Doctor Who, at a cost of a million pounds (give or take a few quid) per episode - that's two million bucks - while US networks like CBS are cancelling shows such as Jericho because the advertising-funded model is failing to support shows that don't reach a certain target number of viewers.
Blanket licensing (here, in the form of the UK Television License) is certainly a sensible, working alternative to advertising-supported media: we should have more of it.
UPDATE: Denise's takeaway is very interesting...