Live Blogging from World’s Fair Use Day: Panel 4 - Speed Fair(Us)e

[This post was written at a live event.]

Welcome to the third session:

Chris Burke, Terri Bays, Lincoln Bandlow, Mark Dery, and DJ Earworm with moderator Orlando Bagwell.

OB: This is gonna move fast!

LB: One comment on the last panel and statutory damages. Statory damages is a range of money. We should have a legislative fix, where if the defendant brings a good faith fair use defense, statutory damages shall be $250. Second legislative fix: If you prevail on fair use, you shall be awarded attorneys fees. I'm a lawyer, that's for you makers. I'm goig to show you a clip from a documentary about roadside eateries. Clip about Bob's Big Boy. Interview has a picture in the background by artist who had been commissioned to paint it. Sued for copyright infringement. LB: brought fair use defense and case immediately thrown out -- documentary film, and should be able to present the wrold as it is. That's what the Bob's Big Boy in Toluca Lake looks like!

I took the plaintiff's deposition in this case. In several of his paintings there were Bob's Big Boy icon. In deposition, asked if he had gotten permission, and artist said "Of course not, that's a fair use!" I love representing documentary film makers because it's slam-dunk fair use territory. Want to use a clip with music in the background cause that's what was going on. That's good. But be careful: When aircraft carrier crews clean the decks for dangerous objects and play Ironman in the background. Recording this is fine -- but when you cut to the interview, you can't keep playing it. Another film none of you saw: Kicking it Old School (Kickin' it Old Skool). Clip where they make references to "Mr. Roboto" because it uses the words from the song. Sued for (c) infringement. Two defenses. 1) This is de minimuis use. 2) Fair use. Comedy, satire, parody, transformative, 3 words, increased market, etc. Won and awarded fees.

Those two are fun slam-dunk. You probalby have more gray issues. But that's what I get on a regular basis as a fair use litigator. With that, I have to go take a deposition.

Mark Hosler has replaced LB on the panel.

OB: On to DJ Earworm.

DJE: Start with assumption that all this copyright stuff doesn't matter much. applause. My goal is to make people happy. This happens when people hear the songs you are familiar with. A hundred years ago, things started being owned. How can you move culture forward when you can't touch culture? Every year I take the top 25 songs from billboard magazine and combine them into one song. I think pop music actually says something about where we are and you can get insight into where we are as a culture. This year a long of songs about fear and supervision. Before it came out, I thought Party by Mylie Cyrus would make it cause of the message -- we're scared, down, want to be uplifted. Other examples of "it's gonna be okay" songs. Seems trite, but it's what we need cause we are feeling down and need to feel better. I take all these songs and try to get them in same key and same tempo -- Ableton live is great for this. Changed "Blame it on the Alcohol" to "Blame it on the Pop." plays while demoing Ableton

Downloadable at djearworm.com. 25 songs total in whole song. Made a video for youtube. Video is #1 on youtube if you can believe it. 6 million views. No copyright holder has contacted him about it. They know -- some have twittered it, been on radio stations, on TV, etc. So many stations playing it without asking anyone questions -- amazing. Spinning at the happy hour after the event if you can make it. Gotta go set up!

TB: Open courseware Consortium. Gonna talk about open courseware. Open Courseware takes course material and puts it online free to the public. He just wants to make everybody happy, we just want to make everybody learn. Teach a lot about third party content. Put syllabus, lecture materials, readings (when appropriately licensed, else bibliography) available online. Lecture materials make the sticky copyright materials. Often considers public performance or distribution. But educators are used to classroom being fair use. Outside the walls of classroom, people get scared. So we go through and take out frivolous content, and leave main content of course. If I put ancient materials up from 400 years ago, mostly in the public domain. Except maybe when a museum digitized something and wants an extra copyright on that. But we can deal with that.

But 20th century lit? That may be a public performance. But because it's no longer in the classroom, have to think about fair use. But transformative use is what we do. We're not distance learning, we're not offering degrees, we're just sharing the knowledge. And we're trying to make them as high quality as we can. Trying to make them the same quality as we offer our students, which means looking at the content. And we want our students to transform it. Which means we have fair use when we put it online in the US.

But we're deeply concerned about what happens to the downstream user in other countries who takes it and remixes it him/herself. Part of the point of using open licenses (to be OCW, has to be open licensed) is to allow people to remix the content in their own context. We don't want to necessarily export US fair use, but we want them to think about how copyright islimited in their own legal context. demo of a little of what you'd see on an OCW site. Syllabus from yale. Lecture materials. Powerpoint slides (on veterenary law). Case study from Johns Hopkins. I recommend the veteranry course. Here's some video from MIT.

We run into copyright right and left. If the faculty member hasn't licensed 3rd party content, the embeded content is an issue. Ex: Talking about a rolling stone cover for theology class (Kanye West with crown of thorns cover). Not selling records, not selling articles, no one takes a class on African American spirituality to get out of buying Kanye West's music. But Rolling stone wouldn't give her the time of day. Instead just made fair use argument and put it up -- still no word from the magazine. "Ancient Wisdom, Modern Love" class.

Got together to create a code of best practices after realized that they had a fair use argument. Try to lay out best practices so practitioners can feel confident going forward. Can check out uses from all members online. But want to work more on downstream users. If materials are locked up, it doesn't do anyone any good.

OB: Many questions to ask, but go to Chris first and hopefully have time at the end. Going to show some examples of the machinima he does.

CB: Produce online video series called "The Spartan Life" -- machinima, which is shooting a film in a real-time 3d environment, which usually means an (on-line) game. Raises copyright issues. Will show a clip. But the short version is we meet up in a game of halo on xbox live w/a guest (who is another gamer). Videotape output of the xbox. Capture and edit it down as an interview. "Sort of like the TV show crossfire with armor piercing rounds." "Talk is cheap. Virtual life is cheaper." Doing since 2005, but much longer history of machinima. Check out the demo scene -- look it up. Started in large part when Id software released the game "Doom" -- release open architecture where people could create their own mods, skins, and versions of the game. Don't think they realized the floodgates there were open.

Now, huge numbers of people making machinima, many of them very young. A little after Doom, Id released Quake, with the ability to record gameplay and later script camera movement. Now you have cinema. Can play the game, record it, and replay it moving the camera. Like recording actors but not having to worry about the camera. At the time, called Quake films (because it was only Quake).

First clip: "Apartment Hunting." Hilarious. Go watch it. But don't let on that you're a lumberjack.

CB: As tech got better, ability to emote got a little bit better. Can lip sync after the fact to it syncs to waveform of your voiceover, though not the same as an actor. Comedy works better than drama, cause people don't feel for the blocky characters. Another example from Halo: "Red vs. Blue" clip Go watch that too (it's about a box canyon). Poking fun at the absurd situation in the video games. One of the few shows licensed by Mirosoft to make and sell on DVD.

Show clip from his show, which is a little different. But first: It has gotten more complex and is reaching a broader audience. Kid made called "the French Democrary" in Paris, serious piece made in The sims. Looks blocky and not great but it has a point and is an issue-oriented piece. Very cool because it has a low cost of entry and is relatively easy.

Interview Katie Salen in the Spartan Life. clip Try to be (as evidence in the cilp) a little more self-reflexive about the Machinima community. It's about half 15-year-olds who just want to blow stuff up and half who are academics. Interview of serious people that the audience might not otherwise see are well-received. A few weeks after release got an email from Bungie's audio director says "Great show, when can I be on." Good relationship from then on (he was on the show soon thereafter). Different from other types of media -- film and recording industry can be draconian, but game industry learned early on the value. MS made an end user license agreement saying what users could be done and what could not. First response was anger cause thought it was overreaching, Fred von Lohmann from EFF got involved, and out of it came positive changes to the EULA, now easier for people to make machinima without fear of being sued.

MH: Mark Hosler, founding member of a group called Negativeland, 30 years together this May. Collages before computers/"sampling"/etc. Found collage a great way to touch deep/profound issues in music which are different from those said with your own voice. Sued for TM/(c) infringement, defamation, fraud for their U2 album. Canary in the coal mine -- one of first groups in online world testing this stuff. Could tell it was one day going to mainstream. Came to Washington with Michael Petricone and spoke to a lot of (mostly Republican) lawmakers about being forward-thinking and not just listening to the RIAA. Most of their work is dense collage, but tried to make one work which wasn't collage at all, but only uses one thing rearranged. What is it? Dunno. clip "My Favorite Things" remixed to have funny/absurd lyrics (using only original audio/video). Hilarity ensues. Goes without saying, didn't ask for permission. Released on DVD, and as DJ Earworm said, nothing has happened. Maybe industry realized it's good, but regardless is a shift in attitudes. Takes years and years to filter into policy, but we're at an interesting place.

MD: Telling the story of the malware on his PC and its attempted exorcism by tech support. Conference on fair use but equally on remix culture and open source culture. This lecture itself will be something of a mashup of hastily written notes and extempor. Showing Ape Guevara meme, meme-splicing of Che and planet of the apes, and the expanded to a bunch of other cultural/political areas. Slide show continues: Vader is also a ubiquitious image -- hello kitty + darth vader, imperial stormtroops as easter bunny, tattoo combining dali painting w/AT-AT from star wars. Sewn together record covers. Various visual mashups. Not-safe-for-work Disney orgy based on a long tradition.

On to some examples of fan vids/video remixes that typify things we haven't seen yet in these presentations. Brokeback Good Fellas. (All kinds of Brokeback remixes, huge meme -- harry potter, star wars, lord of the rings, etc.) Dervied largely from old form of fan fiction called "slash" kirk/spock fan fiction from middle-class heterosexual women. Plucked from subtext which may or may not have been there. Are you overreading this? All readings are overreadings. K/S is Kirk/Spock -- abbreviated to "/". Homoerotic fanfic is known as "/". This community felt the embrace of spock/kirk in movie and "please, kirk, not in front of the klingons" was a vindication of their reading. When VCRs came out, did crude video collages seeming to imply that something was going on/had happen. Seems to have started as a deliberate misreading of a commercial/mass culture narrative. Video on YouTube that descends from this tradition. What if they hadn't made it to vulcan in time:

clip Old star trek clips remixed w/Closer playing in the background. More hilarity ensues. It's important to behold the object of knowledge and not just talk about it in the abstract. Another snippet: "It's Raining Men" over remixed "300". A clip with a different angle of attack on remixing/recontextualization: clip "Scary Mary" -- Mary Poppins remixed as horror.

4 minutes of remarks since I'm over: Been enlightning to be in a den of devil's advocates, but I think one thing may have been lost. To listen to Lawrence Lessig in full flow would lead you to believe that the principle purpose is to allow DJ Earworm to bring a bunch of predominatly white college girls into a frenzy. He thinks there's something more, and he's not impressed with Girl Talk when compared to Grand Master Flash (and others) which were truly virtuosos. Saying some charged things he doesn't have time to impact. But he thinks it's really about something more important. Something Umberto Eco called "semiological guerilla warfare." The essence of this (culture jamming) is the use of certain non-dominant groups to critique the dominant culture, and this is the most important use. In medieval times they would dress pigs in the king's mitre, fornicate on the alter, recite the lord's prayer backward ("oh, to time travel"). Seemingly non-dangerous protest through appropriation of the symbols of the dominant culture. 1960's -- symbolic alteration of public signate to disrupt the landscape. That's what Negativeland had in mind in their essay on culture jamming. why is this happening now? There is a frenzy of semiosis. Culture has always been a highly-elusive highly-referential derivative work. Now we live in a world where technologies of copying and reproducibility and dissemination have remix the characteristic culture gesture of moment. Some examples shown here -- some political, some silly, etc.

We live in a moment where everything can be reproduced and reassembled to political or apolitical effect. Our moment fetishized actived audiences, "our space," the wikization of everything. This sort of culture -- vernacular appropriation culture -- which would be made more robust by a more enlightened copyright regime, would be made more robust because it's a way in which culture talks to itself... "You give me words that I may mock you." from the Tempest. That is why we should defend fair use and free speech.

[Editor's Note: If you truly want to get the details of what Mark said, watch the webcast; it's extremely dense and difficult to summarize.]

OB: Thank you to the panelists.

GBS: On to the reception. We put up www.copyrightreformact.org -- it's Public Knowledge's take on how copyright should be reformed. Thank everyone for coming. Next year around the same time. And this panel (which went over) will be longer.

And thank you for reading. Hope to see you at the next WFUD!

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