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, 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 going to emerge?

Class Session

Part I: Is there a crisis?

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. 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). In short, the Internet has given us tremendous new ways of making, sharing, and enjoying cultural goods.

Yet these same developments have also 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 high-quality 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.
• Nothing. The worst is behind us.

Part II: Paths forward

We have identified six proposals, based in part on Professor Fisher's presentation in his Advanced Intellectual Property class and in part on Diane Zimmerman's essay which is part of your readings this week. Some of these are mutually exclusive, while some may easily complement each other.

Questions to keep in mind:

• 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?

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 deterrance. 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.

Preserve the legal status quo, but encourage innovative distribution mechanisms

• 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.

Preserve the law, but institute Technological Protection Measures

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.

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.

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.

Relax IP Laws Themselves

Some argue that letting copyright recede into the background is not enough--we need to reform our copyright laws themselves. In Remix, for example, 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.

Part III: Is the art changing, too?

Questions to Consider

• Is there a movement from professional to amateur creation of art?
• 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 we lose the stability of cultural icons.
  • Should we be concerned about an over-reliance on remix as a portion of amateur creativity? If we have everyone mashing 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, amateur, TKTK

Amateur-->Professional

They do not allow unauthorized sharing or remixing, but they 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. 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 "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 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

Further questions...

If we have time, 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
  • 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: Rasmus Fleischer on The Future of Copyright --a chilling vision of things to come?

Pre Class Assignment (Due Friday 9 AM)

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.