by Ali Sternburg

The Lawrence Lessig Wireside Chat took place on February 25, 2010 at Harvard Law School in Cambridge, Massachusetts.  In addition, it was broadcasted to over forty national and international locations, making it, according to host Elizabeth Stark, “the most widespread open video transmission ever.”

The Washington, DC viewing was at the American University main campus, and was followed by a discussion on fair use and free culture by Professor Pat Aufderheide, the Director of the AU Center for Social Media.

Harvard Law School Professor Lawrence Lessig is somewhat of an academic hero to the columnist.[1] Several years ago, while reading Lessig’s books, most of which are available for free download online under various Creative Commons-licenses, and watching videos of his presentations, I discovered areas of the law that I found fascinating, which I credit as the reason behind my senior honors thesis in college and decision to apply to law school.

While Lessig’s presentation showcased his more recent departure from promoting the values of free culture and fair use to advocating a general ethics campaign against Congress (read: anti-Citizens United), he gave a dynamic lecture that renewed my passion.

The free culture movement and fair use doctrine are two subsections of intellectual property policy that emphasize the value of amateur creativity and the role of an engaged public sphere.

As a brief background, fair use is an area of United States copyright law; other countries call it fair dealing or exceptions.  Fair use is most frequently invoked as a defense to alleged copyright infringement.  Four factors, laid out in 17 U.S.C. § 107, are considered when determining whether an act is legitimately a fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

A brief introduction to the concept of free culture can be found in Lessig’s 2004 book “Free Culture” which is freely downloadable at http://www.free-culture.cc/freeculture.pdf.  He contrasts the ideal free culture with the current “permission culture,” in which technology and commercial creativity regulation interfere with citizen freedom to create and act.[2]

The simulcast was organized by Open Video Alliance, to raise awareness for an open source video format.^[3] The Open Video Alliance created a wiki for discussion of open software formats and principles. The five principles for the Open Video Ecosystem were:  Authorship and Viewing; Open Standards for Video; Open Distribution; A Rich, Participatory Culture; and Civil Liberties and Basic Rights.

Buzzwords that were continually emphasized included openness, freedom, expression, creativity, and culture; all common focuses to the free culture movement.  Lessig’s presentation showcased various forms of media, particularly video clips accompanied by music, demonstrating the benefits of collaborative remixes of existing culture into new culture.  These remixes and mash-ups rely on fair use for their unauthorized and un-licensed uses of preexisting art; people access existing creations, and appropriate them as tools.

Lessig explained, “anybody who thinks remixing is not original is someone who has never tried to remix,” adding that it is “extraordinarily hard to do right, and requires extraordinary knowledge to do well.”  He praised the type of successful remixes that either demonstrate command of the beat (name-checking his friend Girl Talk) or have a well-planned meaning, such as remixing a particular recording of Beatles with another song (mentioning the Grey Album).

Lessig discussed legal and technical platforms for a free and open Internet to best allow for and ensure the proliferation of culture.  For technical platforms, he declared that people should be allowed to download and make derivative works from the content, adding that people can now apparently do this on YouTube.  On another video provider, Lessig’s preferred blip.tv, one can apparently mark the content with licenses, such as Creative Commons licenses.  Addressing legal platforms, Lessig said it is necessary to be clear, and allow people to act and create without unnecessary restrictions of copyright.  He explained that copyright is an “essential part of the digital future, but it has to be narrow and focused,” as only harm can result when copyright is used to try to “regulate amateur culture.”  He called for change in liability on third-party programs such as YouTube, asserting that “American law is backward right now.”  He explained that the law essentially says that in an infringement controversy the creator violates copyright law and YouTube is immune from liability; instead, Lessig says the law should regulate commercial profiting from creativity and not the creator.

Lessig spoke to empower people of our generation to be involved and active and to create.  He encouraged use of YouTube to accomplish and share both of these goals.  He recognizes the need for a copyright system, and the importance of artists to be compensated; he also does not propose drastic changes in current copyright laws, because he does not think the current Congress would be open to such progressiveness (an acknowledged problem to him).  When asked about what the appropriate copyright term limit should be, Lessig answered, “Much less.  Never should you be allowed to extend an existing copyright.”

However, he does see potential in the courts (although not necessarily the Supreme Court) to emphasize fair use and understand the realities of the digital age, and to encourage the Constitutional intentions of copyright: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (U.S. Const. art. I, § 8.)

After the discussion, Aufderheide held a talk on fair use, in which she promoted the “Code of Best Practices in Fair Use” series, including for Online Video, OpenCourseWare, Media Literacy Education, Documentary Filmmakers, and Dance-Related Materials, all created by WCL’s Program for Information Justice and Intellectual Property (PIJIP) and the Center for Social Media at the American University School of Communication.

Aufderheide’s refreshing honesty and cynicism included taking digs at certain people’s perception of copyright as “the right to hire a lawyer,” rather than its constitutional purpose of “to promote the progress of science and useful arts.” (U.S. Const. art. I, § 8.) Aufderheide advocates fair use as “a mini public domain.”  In recognizing that, although “many judges love fair use, individuals fear it,” she created the Best Practices resources.  These documents enhance the awareness of creative people in what they can do under the guise of expanding fair use rights, while not feeling limited by fear of litigation.  She stated that there has been no opposition to the “Best Practices in Fair Use” documents, calling them “bomb-proof” and even accepted by the major film studios.  Aufderheide explained that in these documents, she prescribes what can be done under fair use in layman’s terms, describing the permitted “practices, not the law.”

While they were still waiting on DMCA exceptions at the time of the presentation, there has been definite progress in the “content industries benefiting from clarity and reduced noise in the system.”  Aufderheide said the following, which resonated with me: “When people act to use their rights, it really makes a difference, and can change people’s lives.”

At the end of Aufderheide’s discussion, we informally created an American University chapter of Students for Free Culture.[4] Given our proximity to our nation’s capital, there is great opportunity for policy reform and advocacy.  On the local level, we can do a lot for American University.  The most important task that can be done on behalf of AU is to advocate for expansive fair use policies, particularly dealing with reducing restrictions of professors uploading copyrighted material to sites like MyWCL.  This can also extend to honor code policies on academic integrity, and not discriminating against bit torrent and bandwidth.

The presentations by Lessig and Aufderheide were very informative and empowering.  I look forward to hearing them speak again, in whatever media it may be.

[2] Lawrence Lessig, “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity,” (Penguin Press 2004) 8 (available at http://www.free-culture.cc/freeculture.pdf).

[3] For analogies, a wiki is open source text, and open source software is found through the use of collaborative APIs for developers, and free programming projects like Mozilla.

[4] To join the AU/WCL SFC, or for more information, feel free to contact the author, Ali Sternburg WCL’12, at alisternburgATgmailDOTcom.

Share