Evolving Online Copyright Interests
I ran across an interesting article in Slate.com recently that I thought I’d share. The article was part of a series on law breaking - and no, that is not why I read it (I am perfectly able to break the law without online advice!).
Rather, the article, written by Tim Wu, who we witnessed earlier debating Chris Yoo on network neutrality (Wu opposed online commercial discrminiation; Yoo saw it as “nothing more than network owners’ attempts to satisfy the increasingly intense and heterogeneous demands imposed by end users”) is titled “American Lawbreaking; Tolerated Use: The Copyright Problem”, and I thought it’d be interesting. Wu argues here that, after traffic laws, copyright laws are among the most broken in our nation. And in the online world, the practice has gotten worse. YouTube, file-sharing, burning mix CDs - they are all affronts on the creative development, and ownership, of copyrights. But Wu notes an interesting contrast that has arisen, which opens the door to larger questions on IP and copyright enforcement online.
While some copyright violations have been harshly enforced (such as the mega-fines for illegal filesharing), there is a growing trend of copyright owners to turn a blind eye, if not outrightly encouraging certain violations. Specifically, he notes two cases to support this - Saturday Night Live, and a Guyz Night rock band parody of Die Hard. Here is more about the latter:
The story of Guyz Nite is the perfect illustration of this conflict within media firms. Guyz Nite is a “comic rock” group that made a video for its song Die Hard, composed entirely of clips from the three Die Hard movies, produced by 20th Century Fox. It was posted on YouTube.
Fox’s legal department went first, ordering YouTube to take down the video, pronto. But then Fox’s marketing department effectively reversed its own lawyers by contacting Guyz Nite and offering to pay them to put the video back up. You can’t fault Fox’s reasoning: The band was creating the kind of viral marketing you can’t buy—intellectual property rules be damned. In a reversal of fortune, Fox even invited the band to the New York premiere of the fourth Die Hard film.
So, the larger corporations seem to be valuing the costs and benefits of this type of copyright violation, and determining that the added viewership outweighs the opportunity costs in litigating the infraction. This is not universal, of course, and Wu cites the case of Viacom who is suing YouTube for a cool $1 billion and to force the online entity to “proactively block all Viacom content” (good luck on that one). This also presents an interesting market challenge and opportunity, in part an extension of the cost-benefit calculation noted above: “For Viacom, this is a delicate game—for if YouTube does block all of Viacom’s shows while leaving up material from NBC, ABC, and other competitors, Viacom could easily lose by winning.”
Later in the piece, Wu shares that he was recently speaking at a Max-Planck conference in Germany, when the “Thomas Jefferson figure in the information revolution”, Larry Lessig, puts forth the following inquiry:
“So here’s what I want to know,” he asked. “Why should we tolerate tolerated use?” His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? Surely the right answer is to fight for reform of the copyright law: Have the law declare clearly that most noncommercial activities, like fan sites and remixes, are simply beyond the reach of the law.
Not an unsurprising angle from Lessig - why should we have this form of regulation if we aren’t required to follow it? Is the law consistent with the online values or norms that have been developed? How are online users supposed to navigate safely if there is no clear line as to what constitutes allowable behavior, or what doesn’t? The situation creates a certain unknowable jeopardy that spans a range of copyright realms - art, music, video productions, etc., which all may have different ‘owners’ who each may call on the government to enforce, or undertake independent civil efforts, to take down the infringement, or who otherwise may applaud the infringement as good for their bottom line.
Wu’s response?
It all boils down to this: Harry Potter fanboys don’t have K Street representation. Consequently, the political system spits out one kind of answer—an answer friendly to the “property interests” of powerful media companies but one that all but ignores the interests of the basement-dwellers. The formal result of that is what we have today: a copyright law that covers almost everything we do in the digital world.
As individuals, we are far less able to leverage the government, which writes the rules and chooses (or is pressured) to enforce them, than the large corporations that own many/most of the copyrights at issue, and can make the cost-benefit decisions, on a case-by-case basis, of how to respond to infringement. Without a doubt, there is more to it, but this is a useful angle. Yet, it is indeed handy for a copyright owner for this ambiguity to exist in copyright enforcement - if the infringment suits me, fine, if not, let the hounds loose!