Five Takeaways From World’s Fair Use Day

By many accounts, World's Fair Use Day was a great success. We had a capacity crowd, with hundreds more joining in on the webcast. Members of the audience included staff from the White House, the State Department, the US Copyright Office and Congress. Since one of the main missions of the event was to demonstrate to policymakers the importance of fair use to our culture, our discourse and our economy, having a strong turnout from government is key.

I've now had a few days to reflect on the day's events. Here are the 5 key takeaways for me:

Artists of all kinds want to be compensated, although it is not the driving force behind their creativity, nor is copyright a prerequisite to compensation.

The first panel, which consisted almost entirely of video and film artists (with the exception of "Garfield minus Garfield" cartoonist Dan Walsh) all agreed that being able to make a living from their work would be a really good thing, although for none of them was it the driving force behind their creativity. Of all the panelists, only filmmaker Nina Paley makes a living from her artistry, and interestingly, she admitted that she made more from giving away her film "Sita Sings the Blues" than she ever made by controlling her work. None of the other panelists blamed Internet "piracy" for the fact that their artistry is not their main source of income.

Fair use, while important, is not a panacea for artists.

Nina Paley and the two documentary filmmakers who spoke at the movie night preceding the conference raised the specter of the problems the filmmakers have clearing the rights to music and other works, particularly older works whose owners cannot be found (sound familiar? - they are talking about orphan works). At the movie night preceding the conference, Kembrew McLeod, creator of the film Copyright Criminals, said that to clear the rights to the music in his film would have cost in the neighborhood of 2-4 million dollars. Brett Gaylor, creator of the film RIP: A Remix Manifesto showed the audience a spreadsheet consisting of the scores of songs he had to clear for his film. Needless to say, the time and resources that it takes to clear so many songs is prohibitive for all but the richest film studios.

Nina Paley wisely noted that these clearance problems are exacerbated by the fact that 1) copyright terms are much too long; and 2) there is no longer a requirement that copyrights be registered.

So while everyone agreed that robust fair use is an important tool for artists, there was an equal amount of agreement that copyright law needs to be reformed and modernized for a digital society.

A business model problem and a copyright problem are not always the same thing.

The biggest fireworks of the day came from the second panel, when Washington Post reporter Ian Shapira tangled with TechDirt superblogger Mike Masnick over how blogs should link to, and excerpt from, newspaper stories and whether such blogs shouldn't compensate those entities that engage in original investigative reporting when they do so. Shapira complained that the gossip blog Gawker excerpted too much of one of his stories last summer. After some discussion, it became clear that Shapira's main concern is that newspapers are dying and that they need to find a way to support investigative journalism.

A worthy goal, to be sure, but as Masnick pointed out - is this really a copyright problem or is it a business model problem? Decreases in advertising rates, helped in part by free classified websites like Craig's List, are really what is hurting the newspaper industry, and that isn't a copyright issue. As fellow panelist Pat Aufderheide of American University's School of Communication said, nobody promised newspapers (or any other media) a "lifelong purchase on their business model."

Statutory damages are in serious need of reform.

I moderated a panel that included three entrepreneurs whose innovations depended on fair use - SnapStream Media founder Rakesh Agrawal, DIY bookscanner project creator Dan Reetz, and MP3.com and MP3 tunes creator Michael Robertson. Robertson is famous for losing a $118 million dollar judgment to Universal Music for MP3.com, a service by which consumers who could prove that they owned a CD were then able to rip it to an online "locker" so they could listen to it on any computer anywhere. MP3tunes, which is currently being sued by EMI Records, allows a consumer to put his or her digital music in the cloud, where it can be accessed on any device that connects to the Internet. Understandably, Robertson has a major and understandable beef with the huge statutory damages available to copyright holders under the law, which in his opinion (and ours), chills innovation and creativity.

While Robertson is the rare bird who is willing to risk millions of dollars of liability in order to innovate (his other business successes give him that freedom), the chilling effect of statutory damages was more obvious in the case of Snapstream. Snapstream is, as Rakesh described it a "big ass VCR." More specificially, Snapstream creates enterprise and consumer video recording, editing and archiving solutions. If you are impressed by the number of great newsclips used on "The Daily Show" or "The Colbert Report," you can thank Snapstream.

Given the history of the copyright industries bringing a lawsuit against every new recording device, I asked Rakesh why he hadn't yet been sued. His response was that Snapstream purposely developed its software to avoid such litigation, for instance, by not centralizing their recording equipment, like the "network DVR" service sued by the studios and cable networks in the 2008 Cablevision case. So while a centralized service might have been more efficient and cost-effective, there was no way a small businessman like Rakesh was going to challenge the powers that be.

Fair use benefits large copyright holders too.

Doubtless there was plenty of "big media corporation" bashing going on at WFUD, but speakers like attorney Lincoln Bandlow and machinima artist Chris Burke reminded the audience and us at PK that fair use is important for the big guys too.

Bandlow, who defends fair use on behalf of entertainment companies, presented perhaps one of the most absurd claims of copyright infringement. It came from the movie "Kickin' it Old Skool," where one of the characters says the words (and not in succession), "Domo Arrigato" (which means "thank you very much" in Japanese) and "Roboto." The producers of the movie were sued by the company that owned the rights to the Styx song "Mr. Roboto." Thankfully, common sense and fair use prevailed, and the filmmakers (represented by Lincoln) won the case.

Burke directs an online TV series called "This Spartan Life," which uses a technique called machinima to give new narratives to the Halo video game. In one episode, two of the huge robotic characters bent on each others' destruction engage in serious conversation about important political issues (it is hysterical). Burke said that not only has Bungie (the game's creator) and Microsoft (the game's owner and publisher) not expressed disapproval, they have discussed ways to support Burke's work. They, unlike other large copyright holders, appear to understand that cool creative uses like Burke's help, rather than hurt, their brand.

What were your takeaways from World's Fair Use Day? I'd love to hear them.

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