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All the lawsuits and rhetoric around people uploading copyrighted material on video-sharing sites such as YouTube make it seem like a black-and-white situation: either you’re shooting your own original video or stealing it from someone else. But what’s lost in that simple either-or interpretation is the more gray area in copyright law known as fair use, which protects people who use copyrighted material for scholarship, review or parody.

So American University’s Center for Social Media set out to determine the scope of online video with copyrighted material that could be potentially protected under fair use instead of being caught in automated anti-piracy filters. After CSM researchers viewed thousands of videos that used copyrighted content on popular video-sharing sites, they were surprised to find nine broad categories of videos that could be legal under fair use:

1. Satire and parody
2. Negative or critical commentary
3. Positive commentary
4. Quoting in order to start a discussion
5. Illustration or example
6. Incidental use
7. Personal reportage/diaries
8. Archiving of vulnerable or revealing materials
9. Pastiche or collage

CSM’s study, Recut, Reframe Recycle includes dozens of examples of such videos. Peter Jaszi, law professor and director of the Program on Information Justice and Intellectual Property at American University, is one of the principal investigators on the report. He told me the report was timely because of the recent push by video sites and copyright holders to remove pirated material.

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Peter Jaszi

“Everyone who talks about solving the problem of piracy talks about the need to safeguard fair use,” Jaszi said. “But unless you know what it is and its extent, it’s hard to know what’s involved in protecting it or know what stands to be lost. The goal of the study is to begin to document the extent of fair use practices so that these policies about the protection of fair use and copyright enforcement, which I take at face value as being well intentioned, can actually be translated into meaningful action.”

One example from the study is “7 Minute Sopranos” (see below) which literally splices up highlights of the HBO series with original commentary. Is it OK to use all that copyrighted footage and upload it to YouTube?

“The guys [who made the clip] really understand not only what happened in the show, but they displayed their knowledge with humor and love,” said “Sopranos” executive producer, Matthew Weiner, in an interview with the New York Times. Instead of having the clip pulled down, the producers understood the value of a fan remixing their material in an homage.

The problem is that in the rush to remove all copyrighted material from video sites, fair use of that material would be removed as well. The Electronic Frontier Foundation (EFF) sued Viacom over its takedown of a Brave New Films clip that used parts of “The Colbert Report” — and Viacom backed down. EFF’s senior intellectual property attorney Fred von Lohmann told me he was happy to see the CSM’s study and welcomed its detail in showing potential fair use of video.

“The report starts the work of filling a big hole in the debates around user-generated content and copyright,” he said via email. “For most of the past two years, the debate has focused on the Viacom vs. YouTube fight, making people think that user-generated video was all about [‘Saturday Night Live’] and ‘Daily Show’ clips. By going out and actually looking at the creativity that’s on these sites, the CSM report reminds everyone that user-generated video is really about new (often surprising!) forms of transformative creativity.”

I spoke in-depth with Jaszi and Patricia Aufderheide, professor and director of the Center for Social Media, about their findings and what they mean to our remix culture. The study is part of their cross-disciplinary work on the Copyright and Fair Use in Participatory Media project, funded by the Ford Foundation. Now, they would like to set up a blue-ribbon panel of experts and video producers to create a best practices guide for fair use in online video — just as they successfully set up a guide for documentary filmmakers who want to use copyrighted material in their works. The following is an edited transcript of our teleconference call.

Tell me more about the Participatory Media project that you have at American University.

Patricia Aufderheide: I’m in the school of communication, and this collaboration with the law school is now four years old. I’ve been concerned with public interest issues in communication policy, and in the political import of expressive choices. When people have an opportunity to insert their comments into public discourse, what difference does that make? I was a reviewer for many years of independent, documentary and foreign films.

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Patricia Aufderheide

I had concerns about copyright and how it affects freedom of expression, especially in relation to independent and documentary films. And Peter is an international expert on IP [intellectual property] law and particularly around fair use and he’s been concerned about these issues. The question is how does copyright promote its original goal which is the fomenting of culture. He was approaching it from the legal side and I was approaching it from the creative side. We both were working on the question of how copyright law affected creativity in documentary filmmaking.

This project is one of three current projects we’re doing on fair use and creativity. One of them is international and one of them deals with media literacy; this one deals with online video. And all three of those are areas where we saw opportunities to act for specific creative communities to make a difference in making copyright law help freedom of expression instead of hindering it.

Peter Jaszi: I’ve been a copyright lawyer for a long time. Over the years, I’ve come to the conclusion that creators couldn’t look to the legislature or courts for solutions to their copyright problems. The law already contains plenty of doctrine that is designed to work in favor of active creators. It’s really their responsibility, with a little help from others, to take advantage of what’s already there. And what’s on the top of that list, and what’s very underutilized, is fair use.

With this research project, after looking at all these videos, what would you say was your major finding? What surprised you?

Jaszi: What I think was the major finding was that in all the categories of online video that we identified, there were many examples of candidates for being considered as fair use. I didn’t know what we would find. I knew there would be certain uses such as parody and comedy that would be obvious fair use candidates, but I was struck by the breadth and diversity of potential fair usage that was taking place in this new creative space.

Aufderheide: I agree that the biggest surprise was finding so much material out on the Internet that could be endangered by anti-piracy practices that don’t take aggressive efforts to be sensitive to fair use.

Jaszi: That’s what makes the study especially timely. For a while, these practices were more or less under the radar as far as large copyright holders are concerned. But that has changed now. That’s changed primarily because of online video practices like the reposting of last night’s television program so it can be watched this morning — what we call the “DVR to the world.” That’s clearly what has drawn Viacom into the fray. But the solutions that are being discussed that involve automated filtering are solutions that put these [fair use] creative practices at risk.

Aufderheide: It’s a targeted study to make clear that something is at risk and something is at stake. People think that are either putting up personal documentation of some kind — like Junior’s birthday party video — or they are basically stealing by putting up something for everyone to see without taking into consideration the business that’s involved — and without adding any value. The study shows that there’s a lot of things out there, and it doesn’t matter if it’s good, bad, indifferent, insulting or just plain stupid. It is some kind of creative effort, people have gone to the trouble of making something new, often from something existing.

One of the things we noted was the enthusiasm to which people are seizing upon the ability to quote popular culture. It’s expressing a hunger to participate in what for the entire 20th century was mass media delivered to you as a consumer. And it’s a statement about how exciting it is to make and build things and not just to consume them.

Peter, can you explain the “transformative” part of fair use? That was brought up in the study many times, so I’m curious if you can explain what that means.

Jaszi: About 20 years ago, a big shift tooks place that reached its first major fruition in 1994, when the Supreme Court decided the 2 Live Crew case. The Court said that these four factors were important, but there’s one big question to ask to find out if it’s fair use, and it will drive how you do the analysis under the four factors. And that basic question was, “Is the use a transformative one?”

The courts have ruled that a use can be transformative even if it’s a recontextualization. There’s a recent case about a book publisher who was publishing a book about the career of the Grateful Dead and they were trying to get permission to use some of the Fillmore auditorium poster art. They couldn’t make a deal with the copyright owners and used the material anyway. The court said this was an obvious fair use because the posters were originally used to sell tickets, and they may have a secondary use as wall posters, but here it’s being used in the historical narrative. This is value added and repurposing.

Aufderheide: One of the good things that the report does is to remind people that what they might think of being trivial or silly like “Dramatic Chipmunk” [see below] is a legitimate production, and that the First Amendment doesn’t only protect serious and meaningful works for freedom of expression.

Jaszi: The other thing that is interesting to me is that if you go back to see what is written about new media in the era when they start out, if you look at what is written about the novel in the 17th century, or what people wrote about motion pictures in the 1890s, an awful lot of what was written was that “This is crude, baseless, and trivial” compared to the dominant medium of that moment, which would have been poetry or stage plays. And it could very well have been true. So it might have been deficient at the time but look what happened later. Things in their infancy are particularly fragile, particularly worthy of preservation.

I’m curious about someone who puts a clip of a show up on YouTube and then there’s a thread of commentary that runs below the clip where people are critiquing it. The video provokes discussion. Do you believe that’s eligible for fair use?

Jaszi: I think the answer is definitely yes. It might depend on whether the invitation to comment was a real one or a merely cosmetic one. It might depend on the nature of the commentary that the site or poster uses to kick off the thread of commentary. That comes very near the historic sweet spot of fair use that has been in the law since the beginning — that you have to provide the content in order to do a commentary on it. The only difference here is that this is a collective thread instead of one person’s critique.

Aufderheide: Another usage that is worthy and is causing a lot of debate is the Stephen Colbert video from his appearance at the White House press club dinner. It’s not clear why people posted it. Was it because they were worried that other people couldn’t see it? Did they post it because it was funny? One of things we do know is that the posting was about a political event and it caused a lot of political discussion. I don’t know the answer about whether it really is fair use, but you wouldn’t want to exclude it and say that could never be fair use.

Has anything been decided in court about online video copyright and fair use?

Jaszi: Not to my knowledge. The Viacom case has gone behind closed doors into party-to-party negotiations. Whether it will ever emerge is a different question. I’m not aware of anything that has come to a determination. There isn’t an oversupply of fair use cases. If we have to wait until there is a substantial body of case law on fair use, we’d be waiting a long time. One of the things that will be necessary in the next stage of the project will be putting together a blue ribbon panel to come up with best practices. You have to reason by analogy, take a look at other cases like the Grateful Dead case. It’s not online video but it has a lot of material that would be taken into account in any online video case.

Our greatest concern is that the practical decisions that will determine the fate of these new media practices will be made before they ever go to court. They will be made from any negotiations between copyright holders and the video sites, and the judicial questions will be pre-empted by that. This report is therefore urgent.

Where are you along the line of creating this blue ribbon panel and coming up with best practices?

Jaszi: We see it playing out over the next three to six months. We are at a very early stage right now. We’re looking at who might be a part of that effort. We want it to not only be lawyers but others who are knowledgeable about communications, people who are practitioners of this new art, but it’s very early days right now.

How involved will the media companies be in this process of creating best practices for fair use?

Jaszi: My sense is that it’s not fair to them or the process itself to put them in the position to be part of the group that actually devises the best practices. As has been true of the other projects we have done is that the best people are the practitioners and third-party experts. The [media companies] are too conflicted on this issue and are not able in any public forum to acknowledge or speak liberally about fair use because of all the possible downstream consequences to their business models…We’ll try to get objective minded knowledgeable people together to devise something. Unless it’s broadly acceptable to the content owners, it’s unlikely to succeed.

Aufderheide: What is acceptable will be what the law historically encourages, not what we would like to see happen as a result of a negotiated deal. Fair use has its value because it occurs in a situation where the copyright holder hasn’t given permission or is too busy to answer the phone or nobody knows who it is. So you can’t put those content owners in a position to ask them, “Do you like this?” because they would say no, they’re not going to want someone to use their material.

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What do you think? How should video sites balance the need to protect copyright holders with the legal fair use of copyrighted material on their sites? And how can the video sites implement a filtering system that would allow for fair use? Share your thoughts in the comments below.

UPDATE: Steve Mitgang, CEO of video site Veoh, told me via email that one thing the study didn’t look at was business models and how content owners — such as studios — will be able to make money in a world of shared and remixed content. As for piracy filters, he points out:

Algorithms that tease out these [fair use] concepts and literal issues will be extraordinarily hard to do. The best way over time is to have a system that can clearly define what is absolutely “white” and what is absolutely “black” but then highlight what is “gray” for further review. Doing this will require new processes and investment from all
parties, reinforcing why this will be so hard.

It will be hard and will likely require more of a human element in filtering to get it right.