The Future of Copyright and Entertainment

Topic owners: Joe, Miriam

This is the main page for the Spring 2009 session of IIF:The Future of Copyright and Entertainment, including the original course design; the content of guest presentations and class reactions during the session; and the student presenters' reflections from after the session was complete. A full recap and teacher's guide for the session can be found in sections 5 and 6 below. In addition, we've interspersed some comments and questions for discussion in boxes like this throughout the rest of the course description.

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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, TV shows and movies. Gone are the days when it was either download illegally on programs such as BitTorrent or pay for them on iTunes. More consumers can access more cultural content from more creators through more channels of distribution than at any point in history. In this session, we will be exploring how these new avenues of cultural consumption & creation might affect the art and music that we experience in our day to day lives--and just what exactly copyright has to do with any of it.

Concentrating on two forms of content, music and TV programming, we will be examining the blending of amateur and professional creation of cultural goods. In particular, we will be studying the multi-directional nature of cultural production made possible by the Internet, where amateur subcultures create content which is in turn refiltered by industries attempting to attract wider audiences.

Three central questions will occupy us throughout the session: (1) Is there a crisis in the entertainment industry, and if so, just what is in crisis? (2) If there is one, what is the best path forward? (3) What type of art is emerging?

Class Session

Part I: Is there a crisis?

People often talk about the Internet contributing to an "entertainment industry crisis" (as of early May 2009, that specific phrase alone generates nearly 2500 hits in a google search.). We wanted to begin our discussion by trying to pin down just what it is that might be in crisis.

In researching this topic, we examined the changing relationship between amateur and professional creation of cultural goods such as music and video, how the Internet is currently mediating that relationship, and where copyright law ought to fit in. We wanted our classmates to think about these issues and decided to pose the following question to the class before our session: "When it comes to the arts, is there such a thing as too much amateur creation?" Students in the class (as well as a few other interested folks) posted video responses on seesmic. We hoped that the responses to this question would help help us flesh out the potential crises listed in this section.

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 (P2P) downloading as sharing rather than stealing. Too many want to incorporate content into new derivative works like fan videos, musical mash-ups or machinima.

Developments in technology and the rise of Web 2.0 platforms have thrown the content industries into turmoil. Should we be thinking of this as a crisis? And if so, just what is in crisis? Some possibilities:

• The art. As traditional revenue source begin to dry up, we face the possibility of losing valuable cultural goods.
• The distribution channels. It's not the content we need to worry about, but merely the mechanisms through which they are delivered to us. Whether these mechanisms have value independent of the cultural goods is a separate question.
• Opportunities for Semiotic Democracy. Perhaps if the content industries feel forced to stamp out remix culture, we will lose out on opportunities for society to actively engage in culture.
• Reliance on ads. Though ad-based models are for some the solution, others may worry that saturating our cultural goods with product placement is a crisis in itself.
• The relationship between the law and social norms. As file sharing and remixing become more and more acceptable, the law seems more distant from the social norms that underpin it.
• Nothing. The worst is behind us.

Part II: Paths forward

In preparation for the class, we identified six proposed changes for the copyright system, based in part on a discussion from Professor Fisher's class on Advanced Intellectual Property and in part on Diane Zimmerman's essay included in the readings listed below. Some of these proposals are mutually exclusive, while some may easily complement each other. The list is not meant to be exhaustive, but represents several different visions of how art and music can and should be created and shared.

Observations from our class session:

• Some of these models provoked class discussion about the viability of innovative distribution mechanisms. Since many of these ways of monetizing the music and art industry are relatively new, it may be some time before we can judge their efficacy. For an early evaluation of Nine Inch Nail's innovative distribution of Ghosts I-IV, their 2008 album, see this article.

Questions for discussion:

• Is it even possible to make these sort of judgments at this stage, or maybe the goal should really just to allow for the most experimentation as possible and let the marketplace of ideas sort things out?
• How will each one of these options change the balance of professional and amateur art creation?
• How should the rules be enforced? Through private lawsuits? Through DMCA "Notice and Take Down" measures? Or with "3 strikes" regimes, like the one being debated in France? For further discussion related issues, see the session on Internet Governance and Regulation.

1. Preserve the legal status quo, but enforce the rules

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, or the producers of TV shows and movies who 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.

Some scholars have posited that the real problem is that enforcement is simply too costly; it is only because litigating against all infringers would cost exorbitant amounts of time and money that content industries are compelled to seek disproportionate damages from a few unlucky defendants in order to maximize deterrence. Accordingly, they propose reducing enforcement costs in order to allow more streamlined infringement litigation against easy cases of violation--allowing deterrence to solve the problem without restricting legitimate creativity and innovation.

2. Preserve the legal status quo, but encourage innovative distribution mechanisms

Questions for discussion:

• Are any of these channels of distribution clearly more likely to succeed than others (and how, by the way, should we be defining success?)
• What factors are likely to predict success?
• Are these channels of distribution likely to help one type of musician over another?

• Aimee Street lowers the cost of discovering new music by setting price according to download popularity.
• Grooveshark, which charges for downloads from its user-uploaded library but actually gives a cut to the original uploader.
• Advertisement-driven revenue models such as at Imeem, the third-most popular social networking site on the Internet as of August (behind only facebook and MySpace), or the still-in-the-works Vevo, a premium music-only spin-off of YouTube.
• Tip jars, used by Radiohead and Girl Talk for their latest releases, where customers pay as little or as much as they deem appropriate.
• National levies, most recently enacted by the Isle of Man--where a tax earns residents a blanket license for unlimited P2P downloading, with a portion of the proceeds going back to the industry.
• Network-based blanket licenses, such as Choruss, arranged between record labels and ISPs.

3. Preserve the law, but institute Technological Protection Measures

Questions for discussion:

Digital Rights Management is criticized on many fronts. Some view it as an overly restrictive measure that prevents the creation of art that would be justified by the doctrine of Fair Use. Others view it as a hopeless enterprise because as technology advances, people will find ways around the DRM. What role does it play then, in the future of copyright online?

iTunes was likely the most obvious example--that is, until its recent decision to drop DRM restrictions. With iTunes joining the major record companies in abandoning this approach, many now wonder whether DRM will continue to play much of a role in the future of content distribution and production.

Some years ago, Professor Nesson led an effort to promote less absolute forms of technological protection, known as speedbumps, which relies in part on kinder, gentler versions of DRM.

4. Increase Reliance on a CC system as an Opt-Out

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. Flickr is a popular mainstream photo-sharing site that allows users to elect various CC marks.

5. Relax IP Laws Themselves

Questions for discussion:

• How will relaxing the IP laws change the balance of professional and amateur art production?
• How will it affect the type of art we consume?
• How will it affect the stable meaning of cultural goods? Do we stand to lose anything in this process?

Some argue that letting copyright recede into the background is not enough--we need to reform our copyright laws themselves. In Remix, for example, Larry Lessig advocates for adopting a European-style fair-use system where regulated and unregulated uses would be clearly and categorically delineated by statute in order to simplify the law ex ante.

6. Education

Some believe that we can preserve the current distribution models by engaging in aggressive educational campaigns to reverse the shift in our underlying norms regarding copyrighted content.

Part III: Is the art changing, too?

In this part of the session, we looked at the art itself and grappled with empirical and normative questions. We identified bi-directional sharing on the internet: from Professional to Amateur and from Amateur to Professional. We had asked the class to share their thoughts on these matters on Seesmic, and created a mashup of their responses which we screened in class.

Questions for Discussion

• Is there a movement from professional to amateur creation of art?
• How do you distinguish between the two?
• Could there ever be such a thing as too much remix culture, or is it an unqualified public good?
• Should we be concerned about an over-reliance on remix as a portion of amateur creativity? If we allow everyone to mash up Disney & Star Wars, will we have fewer LonelyGirl15s and Obama Girls?
• What happens when subculture art forms, such as fandom, are co-opted by mainstream media?
  • Is this a healthy sign of industries adapting to the times?
  • Or will fans lose interest in remix culture if it becomes a marketing tool?

Professional-->Amateur

Remix culture is characterized by art derived from content produced by mainstream media, such as fan videos, musical mash-ups or machinima. A great example of Remix culture that exemplifies the "bricolage" of art creation in general is George Bush Doesn't Care about Black People. Youtube is chock full of musical mashups. The musician Kutiman recently released an album of youtube samples, woven together seamlessly. Fandom is another example of active consumption of cultural products. These secondary creators thrive in online communities or social networking sites, where they share the resulting "Fanfiction" or "Fanvids." Fanfiction.net has a massive library of fictional works that build upon well established story lines from books, movies and tv shows. The popularity of fandom cannot be underestimated. Time Magazine reported that "[a]s 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."] Henry Jenkins provides a great guide for how to watch a fan-vid.

Amateur-->Professional

One example of the professional art world using amateur creations is the Youtube Symphony Orchestra. In 2008, Youtube called for video auditions for the YouTube Symphony Orchestra. Musicians were asked to submit video performances of a new piece written for the occasion by the renowned Chinese composer Tan Dun. Winners were invited to travel to New York in April 2009, to participate in the YouTube Symphony Orchestra summit, and play at Carnegie Hall under the direction of Michael Tilson Thomas. All submissions are to be mashed up and premiered at Carnegie Hall on April 15th, 2009.

Another example may be the remix musician mentioned above. Is Kutiman really an amateur? His album is considered groundbreaking because its composed of the "most random and mundane individual recordings of a bunch of youtube nobodies" but together they sound great. Arguably, Kutiman is an established artist, having released his debut album a year ago, in February 2008, and has created a mainstream album from "true" amateur work.

Some "professional" content creators do not allow unauthorized sharing or remixing, but have identified the popularity and power of fan-created works, and allow limited mashups and remixes for marketing purposes. Larry Lessig and Henry Jenkins speak of "collaborationist" companies who see "fans as important collaborators in the production of content and as grassroots intermediaries helping to promote the franchise." Jenkins has studied the phenomena of transmedia, multiplatform storytelling, or the use of many media to engage consumers in a particular franchise. One example of transmedia is the Second Life version of CSI:NY episode, launched by CBS and discussed in the New York Times. Another famous one is Audi's 2005 ad campaign called The Art of the Heist, which involved an online mystery to be solved by Audi fans. Companies now launch sophisticated campaigns that harness the interactivity of Web 2.0. Internet transmedia seems to mirror if not exploit the consumer involvement that defines fandom. Lessig explores this type of "sharecropping" in chapter 8 of Remix. The examples abound...

• In 2008, the WB launched WB.com, with online only shows. The site allows users to watch tv or "remix tv" with the "eblender"
• Bravo has a video mashup feature on its website where users can mash video clips from the show and music
• In 2006, the Washington Post gave viewers a chance to make their own interview with Dana Milbank using a video mash up on their website
• Paramount Pictures, CBS, FX Networks, Atlantic Records and NCAA have all worked with Gorillaspot, a company that created and distributes a video editing platform, described here. You can mashup videogames using this platform at mashade.com
• In 2009, Stephen Colbert's not-so-subtle invitation to remix his interview with Lawrence Lessig resulted in these mashups.

Readings

Assigned & Optional Sources for Class

The Past

• • REQUIRED: James Boyle, The Public Domain, Chapter 6: I've Got a Mashup --The historical ironies of our constraints on remix culture.
  • OPTIONAL: James Boyle, The Public Domain, Chapter 5: The Farmer's Tale: An Allegory -- learning from our misadventures in digital rights management.

The Present

• • REQUIRED: A Brave New World: The Music Biz at the Dawn of 2008
  • REQUIRED: Henry Jenkins, Convergence Culture: Where Old and New Media Collide 2006, Chapter 4: Quentin Tarantino's Star Wars (password required)--An overview of the tensions between fan-creators and the movie industry. Includes examples of participatory and interactive mainstream media.
  • OPTIONAL: Sarah Trombley, Visions and Revisions: Fanvids and Fair Use 25 Cardozo Arts & Ent. L.J. 647 (2007)--discussion of Fanvidding as a challenge to corporate control of their media, in the context of Remix Culture and the Fair Use doctrine.
  • OPTIONAL: What fair use? Three strikes and you're out... of YouTube --A brief look at potential chilling effects in current copyright enforcement

The Future?

• • REQUIRED: Diane Zimmerman, Living Without Copyright in a Digital World, 70 Alb. L. Rev. 1375 (2007).--A summary of the various approaches that people are experimenting with and some thoughts on where we can go from here.
  • REQUIRED: Radiohead Fans, Guided by Conscience (and Budget), N.Y. Times, Oct. 4, 2007. --Models based on altruism might work for the already established...
  • REQUIRED: The Robotic Tale of Jonathan Coulton -- ...but might they also yield fruit for the up and coming?
  • OPTIONAL: Conversation between Rob Merges and Madhavi Sunder on cultural theories of IP on the UChicago Faculty Blog (Note: this material was posted too recently to make it into the required reading list for the actual class session, but students were strongly encouraged to have a look. We consider it a very good and concise debate over the virtues and limits of cultural production beyond the professional class.).
    • Sunder
    • Merges Response to Sunder
    • Sunder Response to Merges
    • Merges Response to Sunder
  • OPTIONAL: Rasmus Fleischer on The Future of Copyright --a chilling vision of things to come?

Further Research

In addition to the sources above, we've compiled a list of sources that weren't on the list of readings provided to students before class but would still be helpful for anyone interested in pursuing this session's topic further.

The State of Entertainment Industries Today

No doubt by the terrain here is a rapidly shifting one. But if, at the very least, the reader would like a more complete picture of where the TV & Music industries were at the dawn of 2009, some useful sources are Michael Hirschorn, The Future is Cheese, Atlantic Monthly, March 2009, Douglas MacMillan, The Music Industry's New Internet Problem, Business Week, Mar. 6, 2009, and Elliot Van Buskirk, 5 Ways the Cellphone Will Change How You Listen to Music, Posting to Epicenter Blog, Jan. 6, 2009, 2:00 pm. In addition, William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment (2004) contains an extremely relevant and helpful overview of how the Internet is changing the entertainment business, as well as a provocative proposal for what to do about it.

Alarm over the losses caused by online piracy abound, but for a characteristically grim account, see Michael Cieply, Digital Piracy Spreads, and Defies a Fix, N.Y. Times, Apr. 6, 2009, at B3.

The State of Amateur Culture Today

A good sociological survey can be found at Mary Madden, Pew Internet & American Life Project, The Internet and the Arts: How New Technology Affects Old Aesthetics (2008). For those specifically interested in the legal status of Machinima, there was a recent conference at Stanford on the subject. The Play Machinima Law Conference at Stanford Law School, Apr. 24–25, 2009. For more on vidding, see "Vidders Talk Back" on NPR.

Potential Crises

For more on the cultural value of semiotic democracy (discussed in brief by Professor Fisher during the class session), the place to start is John Fiske, Television Culture (1987), where the term was first coined. More can be found in William Fisher, Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property 168 (Stephen R. Munzer ed., 2001).

The central text on the importance of social norms in the adherence to written law Tom R. Tyler, Why People Obey the Law (1990). For a speech by the same author on the specific issue of intellectual property, see Tom R. Tyler, Compliance with Intellectual Property Laws: A Psychological Perspective, 29 N.Y.U. J. Int’l L. & Pol. 219 (1996).

Potential Solutions

The pay-what-you-want solution generated the most heated debate during class. For more on this, see Kim, Natter & Spann, Pay What You Want: A New Participative Pricing Mechanism, 75 J. Mktg 44 (2009). Empirical evidence that it's working for somebody (albeit a somebody who's already a major rock star) can be found at Nine Inch Nails Album Generated $1.6 Million in First Week (Updated), Posting of Eliot Van Buskirk to Listening Post Blog, Mar. 13, 2008, 10:09 AM. Wired reports that cellphones are changing the way we listen to music and the way its distributed.

For the most comprehensive proposal at solving things through streamlining enforcement mechanism, see Lemley and Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345 (2004).

Larry Lessig has both proposed legislative reform of the copyright system and praised innovative market actors for already thinking outside the copyright bubble in Remix (2008).

On the history and effect of the Creative Commons organization, see Lessig's Free Culture (2003) and Michael W. Carroll, Creative Commons and the New Intermediaries, 2006 Mich. St. L. Rev. 45 (2004).

The History of Musical Borrowing & Authenticity

A one-stop shop here is Musical Borrowing: An Annotated Bibliography. Of particularly interest for those wanting to know how musicians operated in other eras are Frederic Scherer, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries (2004) and Michael Caroll, Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 Cincinnati L. Rev. 1405 (2004).

Those seeking more information on the art of sampling should check out the very helpful Jesse Kriss' History of Sampling

Finally, for more on the search for aesthetic authenticity in a world of cheap and easy reproduction costs, the canonical text remains Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction, in Illuminations: Essays and Reflections 217 (Hannah Arendt ed., Harry Zohn trans., 1968).

Pre Class Assignment (due two days before the class session)

We had two goals with this assignment. First, we hoped that by requiring the class to read and think about these issues before class, our actual class discussion would be deeper. Second, we wanted to use the raw material on Seesmic to learn about what people thought and to incorporate that material in our presentation.

Go to http://seesmic.com/videos/eM1YUCgAmh and, with your groups, upload a video answering the following question: When it comes to the arts, is there such a thing as too much amateur creation? In giving your response, please identify whatever costs and benefits you think are associated with the growth of amateur culture.

In addition to departure points for discussion, we will be using these clips as raw material for a "mashup" that we will be showing during class. In order to give us enough time to prepare this, please have your videos up by 9 am FRIDAY MORNING. We will send out a reminder on Thursday.

Session Recap

During the first half of the class, the student presenters shared their power point presentation expanding on the content described above. The powerpoint presentation is available Media:File.ogg here. Observations from the session have been embedded in the text above.

During the second half of the class, our guest, Stacey Lynn Schulman, Senior VP of Ad Sales of Turner Entertainment Ad Sales Research, presented some of the challenges facing the television industry. Ms. Schulman shared the statistics of television viewership based on Nielsen Ratings. The class was very surprised to learn that even amongst the most internet savvy population, much more time is spent watching tv shows on television than on the computer. Ms. Schulman also described the various institutional actors within the industry and the specific challenges facing Turner Entertainment, a large media company that both produces its own programming and distributes programming of others. With the advent of digital recording, monetizing tv production has become increasingly more challenging. Especially difficult is finding an appropriate balance between airing tv shows on the cable television network and on the network's website while maintaining the efficacy of the advertisements. Our impression from the presentation was that since online viewership still trails tv viewership, media companies are not yet concerned.

Teacher's Guide

The following section deals with the strengths and weaknesses of this session.

Evaluation of the Class

General Thoughts It was our impression that students were extremely engaged by this topic. This shouldn't be surprising, as it's probably safe to say that the issues confronted were already pretty familiar to everyone. In retrospect, we may have cast our net a bit too wide. We made an early decision to try to frame the issues in such a way that it could incorporate both the TV and music industries (mainly because each of us had a special background in one but not the other), but the different institutional structures and revenue streams of the two made this aggregation unweildly. It may have been wiser to split the class into two, with one session concentrating on the music industry and one session concentrating on film and TV. Moreover, it seemed as if we could have devoted a successful session to any one of the potential solutions sketched out in Part II--particularly the tip jar method. We wanted to canvass all the various possibilities, and so were unable to devote substantial discussion time to any one suggestion. In a future iteration, we would recommend focusing on two or three possible solutions as a way of grounding the discussion and being able to delve into the details that a complete survey simply does not permit in a two-hour session.

Seesmic Responses Going through the various seesmic responses, it was clear that the majority of the class struggled with the idea that the growth of amateur culture could ever represent anything but a pure public good. While a few students saw clear red flags in the idea of amateurism as a panacea, most seemed to have to stretch to try and think of material. Some even expressed bewilderment at the question itself. It was our hope that formulating the question as broadly as we did would allow students to talk about what exactly it is they value in cultural goods. In retrospect, we would have done well to avoid as loaded a word as "amateur" in the prompt, which seemed to trip some students up on just getting past the threshold question of where amateur ends and professional begins (indeed, this question was one of the primary themes we intended to explore in our presentation, but we failed to appreciate how difficult it is to address that tension and expound upon it within the limits of a 2-3 minute video clip). We were most pleased by the artistry with which many of the responses were actually made, including voice overs, animation, and even a mashup of other video footage. On the topic of amateur creativity, it was wonderful to see comments presented with such, well, amateur creativity.

Classroom Discussion We would have loved to have more time for discussion in general, but made the rookie mistake of trying to program too much content. Two spots struck us as areas that deserved more development than our session was able to afford:

• The economic viability of some of the innovative revenue models that are currently being proposed (especially in light of imeem's recent struggles to generate a profit).
• Engagement with the contrary viewpoints taken by industry insiders. In the time we had allotted for classroom discussion, we had some good disagreement about the costs and benefits of moving away from a professional class of musicians in general and a pay-to-own-music revenue model in particular. That discussion could have been enriched by presenting students with opposing viewpoints from those who work in the industry (whether the industry is the RIAA or imeem, CBS or hulu). For that purpose, we had accumulated a large amount of recorded interview material that we simply did not have time to incorporate, including comments from Jonathan Coulton (some of which we used in our mashups) and Clap Your Hands Say Yeah front-man Alec Ounsworth. We did play a 2-minute excerpt from an interview with Rick Carnes, president of the Songwriters' Guild of America, that questioned whether any songwriter had much to get out of a system that relies only on performance revenue, but never had the chance to return to it.

Student Presentation Our power point presentation is available here.

Guest Presentation [insert content here]

Use of Technology

1. Choice of Seesmic.com

Seesmic had been used by previous groups in our seminar and we enjoyed using it as a tool to prepare for other classes. We especially liked that seesmic allowed discussion threads.

2. Were our goals met?

We had two goals with this assignment. First, we hoped that by requiring the class to read and think about these issues before class, our actual class discussion would be deeper. Second, we wanted to use the posted videos to learn about what people thought and to incorporate that material in our presentation.

Although several students commented that they did not understand the question presented on the wiki, all the posted videos had insightful comments about the value of amateur creation. This material was useful during our presentation because we could guide the conversation and include people based on their comments on seesmic.

3. Other technology

The only other technology we used was iMovie to make the mashups. We decided against interactive question tools during the class session because we had found them distracting in previous sessions and we wanted the class to be fully engaged.

Suggestions for Future Iterations

Further Questions

There are many more issues to discuss on this topic. We would have liked to discuss the larger picture, by presenting the question of audience:

Who exactly is the audience that we need to convince? Is it institutional gatekeepers like movie studios and record companies, or is their control waning? Is it simply a critical mass of artists who will use Creative Commons or some equivalent move away from traditional exclusive rights regimes? Is it a critical mass of consumers who will actually begin using these websites rather than iTunes? Legislators? Judges? Steve Jobs?