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, whom would we need to convince and how?

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. Secondary creators thrive in online communities or social networking sites, with email listservs and blogs, 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: "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). 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, 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.

A second approach has been to rely on contractual digital-rights management (DRM) rather than property rights. 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.

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

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 and Girl Talk using a tip jar for their latest releases, 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 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? 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?
• The art: Will our eventual choices of distribution affect content?
  • If we place focus on peer-based recommendation, are we setting ourselves up for an aesthetic echo chamber, a sort of artistic Republic 2.0?
  • When we are downloading individual songs rather than albums, and discovering those songs through automated services like Pandora, are we likely to discover new artists to follow? And would this have disproportionate effects on artists whose work is difficult to categorize? Who work is especially derivative?
  • How much remix culture do we want to tolerate? Dial up property rights too much and mashup culture can't survive. But dial them down too much and parodies become less effective--do we need some mechanism of preserving stable cultural artifacts that can fuel future mashups/parodies?
  • How is remix culture changing business models in the industry? Transmedia is multiplatform storytelling, or the use of many media to engage consumers in a particular franchise. Traditional media companies have long used the internet to advertise their products, but now they are launching more sophisticated campaigns that harness the interactivity of Web 2.0. Transmedia seems to mirror if not exploit the consumer involvement that defines fandom (the creation of derivative stories based on popular movies, tv shows and books.) Examples abound, and include:
    • 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 2007, CBS launched a Second Life version of CSI:NY episode, discussed in the New York Times
    • 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
    • In 2005, Audi launched a successful ad campaign called "The Art of the Heist
    • 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

Intended Audiences

In the first part of the session, we will have discussed what changes might be warranted. In the second part, we'll take up who exactly the audience is that we need to convince-- after all, it's probably not our seminar. 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? At the end of the day, who are we trying to convince--who do we *need* to convince?

Readings

• The Past: Learning from our mistakes
  • James Boyle, The Public Domain, Chapter 5: The Farmer's Tale: An Allegory --misadventures in digital rights management.

• The Present: where is copyright & creativity at now?
  • A Brave New World: The Music Biz at the Dawn of 2008
  • James Boyle, The Public Domain, Chapter 6: I've Got a Mashup--The historical ironies of our constraints on remix culture.
  • Henry Jenkins, "Convergence Culture: Where Old and New Media Collide" New York University Press, 2006, Chapter 4: Quentin Tarantino's Star Wars

• The Future?
  • Diane Zimmerman, Living Without Copyright in a Digital World, 70 Alb. L. Rev. 1375 (2007).--A summary of the various options for where we can go from here.
  • Rasmus Fleischer on The Future of Copyright
  • Radiohead Fans, Guided by Conscience (and Budget), N.Y. Times, Oct. 4, 2007.
  • The Robotic Tale of Jonathan Coulton

• 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)

Session Format

A diversity of perspectives on remix culture and the limits of the copyright system will be the best way to explore this topic. We would like a panel of artists, industry actors and academics to present their opinions to the class and to share relevant research/projects.

Pre Class Assignment

Make a mashup! details to follow...

Guests

• Artists
  • Thom Yorke (unconfirmed)
  • Yo-Yo Ma (unconfirmed)
  • Billy Bragg (unconfirmed)
  • Tan Dun (unconfirmed)
• Industry Execs.
  • Stacey Lynn Schulman (confirmed)
• Academics'
  • Henry Jenkins (confirmed, but we need a different date than March 16)

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)

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)