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SXSW notebook: Panelists, audience have fun debating fair use

March 20, 2009 | 12:10 pm

It'd be cool to inhabit the mind of a present-day 16-year-old. Or terrifying. Either way, you'd probably get a stark sense of what, if anything, the new generation of media consumers thinks about copyright. If you're a kid with an Internet connection and unlimited access to a world of instant content -- movies, TV, music, words, images and everything else -- how much do you really understand the fuzzy and complicated  rules about what you're allowed to download, remix and republish?

Even adults can't agree on the answers to those questions -- including some who are paid experts in copyright law. Earlier this week at SXSW, Jason Schultz of Berkeley's Samuelson Law, Technology & Public Policy Clinic ran an entire session on the nuances of so-called fair use. Schultz played a series of online video clips containing repurposed material. After each one, he had a pair of intellectual property attorneys debate whether the filmmaker was an outlaw pirate or an artist engaged in protected creative expression. 

In the corporate corner was Ben Sheffner, an entertainment industry attorney whose client roster has included 20th Century Fox and NBC-Universal, and who worked on John McCain's campaign. And in the creative freedom corner was Julie Ahrens of Stanford Law's Fair Use Project. (The lawyers were arguing standard positions, not their personal opinions.)

After the arguments, Schultz took a vote to see where the 100-or-so-person audience stood on whether the video was fair use. Here's a thumbnail of the panel:

Video No. 1: Synchronized Presidential Debating from 236.com

Sheffner: "CNN or some of the other copyright owners that may have supplied this footage spend millions and millions of dollars on their news-gathering operations. They send huge trucks with lots of equipment and lots of technicians around the country and take these pictures. They need to recoup those costs. When people want to remix or reuse or rebroadcast that footage, they think someone should have to pay for it." 

Also: "What I found out during the campaign is that a lot of the motivation from news organizations making copyright claims is not really even about the money, it's that ...

... CNN or Fox or MSNBC does not want to be associated in any way with one of the campaigns. So the thing that really bothered them was not that they were doing it for free; it was that the filmmaker was affiliating them with CNN by running a little bug across the bottom."

Ahrens: One of the key parts of why we have fair use, and the reason why it's important that it's a robust doctrine, is that it's a protection of your First Amendment right and free speech. This is clearly political speech. We have video clips of the presidential candidates. The fact that the debates are shown on national networks does not give the networks the right to own and control what we say about our own politicians and the view that they take. This particular video is very clearly a fair use considering the point of the video is to criticize both candidates for having talking points that they stick to.... This is demonstrating why people tune out on debates. That is something you cannot do as effectively without using the video clips. 

Schultz later added: "News in some ways is about reality -- and reality is not really copyrightable."

Vote: Everyone in the audience thought this was fair use of the material.

Video No. 2: The Films of Stanley Kubrick by Paul Proulx

NOTE: Amusingly, the audio on this clip has been removed by YouTube because of a copyright claim by Warner Music Group. A (much better) version with audio is here. The following discussion focuses on the movie footage in the clip.

Sheffner: I think this is a relatively clear case where fair use does not apply. The central purpose of fair use is to allow people to exercise their First Amendment rights to comment, to criticize, to praise, to parody. This video does not do that. What this video does is to demonstrate the skill of Stanley Kubrick -- it entertains you. It shows you a bunch of great filmmaking techniques that he uses in his movies.

Ahrens: If there's one thing I can hope to dispel through this panel, it's the idea that fair use is limited to commentary and criticism. It is not. The Supreme Court has made clear that fair use at its heart protects transformative works: works that add new meaning, message or a different purpose than the original. You would not watch this video rather than watch [the original films]. What this creator has done is to create a new work that is much like an essay, but a visual essay using the different clips to draw together the themes of Kubrick's films. There's definitely a thread of how these films use similar ideas, or how Kubrick is a sadistic guy, and those are themes that are coming out through this montage. And what's important is to protect people who have a new way of communicating what the films are about.

Vote:  A little more than half of the people thought the video maker needed permission to use the clips.

Video No. 3: Boombox: 100 days, 100 songs, 100 locations, 100 dances by Ely Kim

Sheffner: There's two separate copyright owners in each of the songs you hear. There's the recording artist or the record label, and there's also the music publisher or the composer. From their perspective, as the sales of recorded music are declining, they need a way to make a living. And they do it by getting royalties off public performances in the case of the songwriter, or reproductions in the case of the record label. When big companies see something like this broadcast on, say, YouTube, they're thinking not just about a kid having fun, but about YouTube, which is owned by Google, a gigantic corporation. They're saying, 'Hey, Google and YouTube are attracting all sorts of users, trying to build a huge business model, and they're not paying me a dime, and that's not fair. If they want to broadcast my song, they should have to do the same thing everyone else does: Pay me a royalty.' The information isn't some special, lawless, information-wants-to-be-free kind of place. And in the long run, if there's nobody paying for music, there'll be a lot less of it. 

Ahrens: Again, the common theme: This is clearly a transformative use. It doesn't substitute for the original. You can't watch this guy's video instead of buying all these different tracks. In fact, it may cause people to go, "Oh, I love that song, I need that." But this is the way that we express ourselves in today's culture, with our newest technology and the ability to share this video. And this guy is demonstrating the impact music has on everyone -- that it moves you, it makes you want to dance, that it has an emotional element. His ability to show that should not be hampered by the Copyright Act -- especially because I cannot imagine this has any negative impact on the market for those songs.

Vote: Just a handful thought securing permission should be legally necessary in this case.

-- David Sarno

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