The Future of Copyright and Entertainment

Topic owners: Joe, Miriam

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Precis

We are beginning to see more and more choices for where and how to get copyrighted digital art, such as music, videos, and images. Gone are the days when it was either download illegally on programs such as Limewire or pay for them on iTunes. In some instances, copyright is even receding as a battleground issue altogether. In this session, we will be exploring how these new avenues of art consumption & creation might affect the way we experience art and music in our day to day lives--and just what exactly copyright has to do with any of it.

Two central questions will occupy us throughout the session: (1) What is the most viable/desirable distribution method for digital art? (2) For whatever our answers to the first question may be, who would we need to convince?

Distribution Mechanisms

Few would disagree with the proposition that exclusive rights regimes like copyright seem ill-suited to digital content on the net. Too many users see peer-to-peer downloading as sharing rather than stealing. Too many want to incorporate content into new derivative works like fan videos, musical mash-ups or machinima. The question is, then, if traditional copyright isn't working, what is?

As Diane Zimmerman has observed, recent approaches to distribution of artistic content on the net embody several different responses to this question. First, some already established powerhouses such as the Beatles and J.K. Rowling have simply chosen to avoid digital content altogether. We might think of this limited group as the Zealots, who would rather avoid the difficulties raised by net-based distribution because, frankly, they can afford to do so. A more tempered version of this attitude is adopted by artists such as Metallica, who still allow their work to be distributed on iTunes, but who insist on policing any unauthorized sharing of their work as violations of their copyright in the work.

A second approach has been to rely on contractual digital-rights management (DRM) rather than property rights. iTunes is likely the most obvious example, along with Sony's experiment with DRM compact discs a few years back.

The third approach is that of Creative Commons--subvert the copyright regime altogether by rendering it irrelevant. Artists relying on CC-style licensing schemes simply opt out of an exclusive rights regime by assenting to downstream sharing and in some cases creation of derivative works.

FInally, a fourth approach has been to create radically new marketplaces. One example has been Aimee Street, which lowers the cost of discovering new music by setting price according to download popularity. Then there has been Grooveshark, which charges for downloads from its user-uploaded library but actually gives a cut to the original uploader. And then we find the advertisement-driven revenue model creeping in, such as at Imeem, the third-most popular social networking site on the Internet as of August (behind only facebook and MySpace). We also find Radiohead using a tip jar for their latest release, where customers pay as little or as much as they deem appropriate.

With this range of options in mind, we will be assessing:

• The mechanisms themselves: Are any of these channels of distibrution clearly more likely to succeed than others (and how, by the way, should we be defining success?) What factors are likely to predict success? Is it even possible to make these sort of judgments at this stage, or is the goal really just to allow for the most experimentation as possible and let the marketplace of ideas sort things out?
• The art: Will our eventual choices of distribution affect content?
  • It we place focus on peer-based recommendation, are we setting ourselves

Peer Recommendation Services

With the rise of peer-recommendation services and internet-radio stations that are driven by a listener's past interests, it's worth asking just where & how we'll be discovering new music in the future. When we are downloading individual songs rather than albums, and discovering those songs through automated services, are we likely to discover new artists to follow? Or does "the artist" as a predictor of our aesthetic taste begin to recede in importance?

Of course, connects to Cass's Daily Me / Republic 2.0 worries. You might see if Cass wants to present something related to that this week. JZ 05:30, 16 December 2008 (UTC)

Collateral Effects

This is going to need the most fleshing out.--JFishman 00:45, 19 December 2008 (UTC)

It has been said that iTunes is changing our musical culture from an "concept based" one to a "song based" one. The transition means that the album becomes less and less of a meaningful unit of creativity; consumers are more likely to think of the tracks as individual songs than as parts of a coherent whole. Music critics might follow suit. It's worth asking whether this trend will continue--does the move to digital media necessarily produce this result? The potential demise of the album provides a useful case study of how means of consumption and distribution affects how we conceptualize the music we experience.

I've heard this complaint since the rise of the CD player and shuffle play! Interesting, but has it developed in the past 20 years? And how to move from crystal ball future-prediction questions towards issues with a policy dimension? JZ 05:30, 16 December 2008 (UTC)

Some possible questions of the week:

• In 5 years, where are we likely to be getting our music from?
• Are any of the models described above likely to succeed commercially?
• Are our methods of music consumption likely to have an impact on our methods of music production? Is this likely to have an affect on the sort of music available to us?
• How closely will we be following particular artist's careers? Is the rise of peer-recommendation services likely to decrease the importance of brand loyalty to an artist? With alternative indicators of whether we're likely to enjoy something, will we see fewer listeners buying the latest album? Does anyone even care about albums anymore?
• What affect will all of this have on our inclination and capacity to branch out in our tastes? For those that worry about internet echo chambers, should we be just as worried about an echo chamber for the arts?
• Just where does the recording industry fit in to all of this?
• How much does copyright have to do with the new strategies being developed for distributing music online? Where would changes in copyright law make the most difference? The least difference?

Possible Readings

• James Boyle on mashups
• Radiohead Fans, Guided by Conscience (and Budget), N.Y. Times, Oct. 4, 2007.
• Diane Zimmerman, Living Without Copyright in a Digital World, 70 Alb. L. Rev. 1375 (2007).
• Michael W. Carroll, Whose Music Is It Anyway? How We Came to View Music as a Form of Property, 72 U. Cin. L. Rev. 1405 (2004).

Possible Guests

• Radiohead (worth a shot, right?)
• Brian Burton, aka DJ Danger Mouse
• Girl Talk
• Jan Jannink (co-founder of imeem, formerly of Napster)
• James Boyle (Duke Law School & chair of Creative Commons)
• Terry Fisher (HLS & Noank Media)
• John Buckman (Magnatune Records)
• Downhill Battle

The Big Think team might be able help secure some of these folks -- hit me up at peter@bigthink.com if you'd like some assistance making contact. PeterH 07:11, 25 December 2008 (UTC)

The Proliferation of Imagery Online

This topic is expansive, but there are three areas that are particularly interesting:

• Mainstream media and fan culture
• Changing expectations about privacy
• Sharing media internationally

Web 2.0 allows people to create and share audio visual works that borrow from mainstream media. The proliferation of images online presents new challenges to the copyright regime. Music and video is taken from digital sources and manipulated to create new works. These "Fanvids" are easy to distribute because they are digital media. Their creators thrive in online communities with email listservs and blogs. Or you can visit www.fanfiction.net for a massive library of fictional works the build on well established story lines from books, movies and tv shows. "As of the week ending Aug. 25, 2007, the site ranked in the 159th position of over 1 million websites, putting Fanfiction.net ahead of sites such as Apple.com" (quote from Time Magazine)

Although many of these works potentially infringe upon the original works, industry figures are looking to harness the free marketing...

• Marvel Studios head quoted saying “ I now consider [fans] filmmaking partners”
• CBS has promised to allow fans to post clips of shows and even “mashups” or simple fanvids on the internet
• Bravo has Video Mashups on its Project Runway website

The internet encourages semiotic democracy, but to what extent should we allow shared cultural references to be deconstruct by copyright infringers?

Social networking sites such as myspace.com, facebook.com and flickr.com feature many photographs that push the limits of people's privacy expectations. Lawsuits may proliferate, like Chang v. Virgin Mobile (complaint available here http://news.justia.com/cases/featured/texas/txndce/3:2007cv01767/171558/) Given the speed and ease with which we can communicate with each other on the internet using words, images and sounds, how does our consumption of media change?

International art forms are now enjoyed almost instantaneously across borders, as unauthorized copies are posted on the internet. We all know about American cultural products exported abroad, but the internet also allows many interesting forms to be brought in, such as Japanese anime, subtitled by amateurs ("fansubbing" is explained further http://en.wikipedia.org/wiki/Fansub)

Possible Readings

• Sarah Trombley, Visions and Revisions: Fanvids and Fair Use 25 Cardozo Arts & Ent. L.J. 647 (2007)

• Sean Leonard, Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Anime 12 UCLA Ent. L. Rev. 189 (2005)

• IN THE FACE OF DANGER: FACIAL RECOGNITION AND THE LIMITS OF PRIVACY LAW (Harvard Law Review article, uploaded to site, but I cannot figure out how to link to it.)

Possible Guests

• Rebecca Tushnet
• reps from Mainstream Media to comment on ways to collaborate with/crush fan culture.
• Terry Fisher
• will think of more as soon as exams are over. :)

You might check out some of Terry's and others' work on "semiotic democracy," with an eye towards seeing (1) whether we buy the basic theory and (2) if so, what policy prescriptions or other action items might emerge from it. JZ 05:30, 16 December 2008 (UTC)