The Future of Copyright and Entertainment

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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.

Some of these content creators want it both ways. 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

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. And, finally the most radical solution can arguably be found in the Isle of Man--where a national levy for every resident earns them unlimited P2P downloading, with a portion of the proceeds going back to the industry.

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?
    • What happens when sub culture art forms, such as fandom, are co-opted by mainstream media? Will fans lose interest in remix culture if it becomes a marketing tool?

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


  • The Present
    • A Brave New World: The Music Biz at the Dawn of 2008
    • What fair use? Three strikes and you're out... of YouTube --A brief look at potential chilling effects in current copyright enforcement
    • 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.
    • 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.


Pre Class Assignment

Please collect some "raw," digital material, such as photos/video recordings/audio recordings. Pick material that you find compelling. We will mash this personal material with footage filmed in class.

We were thinking about making a mashup about mashups (how original), but we can take the class mash up in any direction.

Please check out kaltura, an open source video platform so that in class mashing will be easier.

For inspiration on this meta theme, check out this contest from 2008.

Remember to read the assigned articles.

Class Session

We're hoping to have guests from the worlds of academia, industry, and arts joining us for our session so we can get a diverse set of backgrounds. The discussion will be roughly divided as follows:

I. What exactly is the problem?

  • We will spend a short amount of time at the beginning of the class trying to define what exactly we think is wrong with the picture sketched by some of the readings and students' own experiences. This may simply be an overview of what we think has been tried and failed in the copyright wars of the last 10 or so years. (Of course, if anyone feels that everything is hunky dory, this may turn into a longer discussion, but you'd have a hard time convincing many, especially the music industry).

II. What is the best solution?

  • We will begin this segment of the discussion by talking about Diane Zimmerman's framework for categorizing industry responses to the shortcomings of the current copyright regime. This was published two years ago--do we feel this accurately captures where we're at in 2009? Are there other ways that are out there that don't really fit into any of the categories she delineates?
  • Once we have a consensus on what options are out there, the next step is to discuss their merits.
    • What traits are likely to predict commercial success? To predict the support of amateur fans/musicians/artists? To predict the support of professional musicians/artists? Are they the same traits?
    • Zimmerman posits that we may not be able to make these sorts of judgment calls at this stage, which is why we need to put a premium on the ability to experiment freely. Do you agree?
  • Thus far we will have discussed a lot of "how": how will cultural content be produced? how will it be distributed? and how will it be consumed? A related question is what effect the answer to "how" will have on the "what": what types of art/music/culture do particular channels of production/distribution/consumption favor? Some examples:
    • Would any of this obscure the line between amateur & professional? Ask Jonathan Coulton.
    • Does remix culture foretell a sea change in the business models of ad companies? Based on early returns, how are ad execs harnessing fanvids & remixes for their clients?
    • With the rise of music marketplaces that are driven by peer-recommendation services, do particular artistic approaches stand to benefit?

III. Who are we going to need to convince in order to achieve this solution?

  • In the penultimate section of the class, we will be turning from the policy to the politics. Who exactly is our audience? (See section in precis on intended audiences). Who ultimately needs to buy into what we're saying?

IV. Tech Wrap-up: Demonstration on how to make mash-ups of the class

  • In the last 10-15 minutes, we'll make a class mash up. Although much artistic creation is individualistic in nature, especially on the internet, where lonelygirls abound, we would like to experiment with artistic collaboration. To make this amazing creation we will be using Kaltura, the video mashup platform equivalent of wikipedia.

Post Class

We're making this part optional, but we're hoping that a lot of you will continue this mash-up over the course of the rest of the semester. We know you need excuses to procrastinate...

Guests

  • Artists
    • Thom Yorke (unconfirmed)
    • Trent Reznor (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)
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