Remixing Copyrighted Video – Fair Use or Infringement?

Remixing Copyrighted Video – Fair Use or Infringement?

I recently asked Harvard Law Professor and political activist Lawrence Lessig: what's in it for businesses to be more lax in their enforcement of copyrighted video based on fair use culture? Lessig was the recent guest speaker for a "Wireside Chat" on fair use, politics, and online video –sponsored by the Open Video Alliance, and streamed live worldwide from the Harvard Law school campus.

Who is Lawrence Lessig (and why you should care)

Remixing Copyrighted Video – Fair Use or Infringement?

Lawrewnce Lessig, Professor – Harvard Law School

Lawrence Lessig, billed by the event presenters as "the foundational voice of the free culture movement," is a director of the Edmond J. Safra Foundation Center for Ethics at Harvard University and a professor of law at Harvard Law School. He is also political activist and advocate for reduced legal restrictions on copyright issues, including those which apply to online video. Prior to rejoining Harvard, he was a professor of law at Stanford Law School and founder of its Center for Internet and Society. Lessig is a founding board member of Creative Commons, a board member of the Software Freedom Law Center and a former board member of the Electronic Frontier Foundation. He is also the author of many books, including Code and Other Laws of CyberSpace and Free Culture.

Lessig has often been a prickly thorn in the side of copyright lawyers. One of his more notable claims is that because 70% of young people obtain digital information from illegal sources, that the law should be changed, rather than treating them as criminals. (I remember when I was a teacher at a local community college, I think it was probably 100% of the students in my class who were obtaining digital information from illegal resources.

After the OVA presentation, I was able to "virtually ask" my question to Lessig via my Tweet submission to the moderator during the Q&A portion of the event. I did try to get an interview with him for ReelSEO beforehand, but I was told by an OVA representative that he no longer gives interviews, only speaking engagements. (Well, I guess that also must be because I'm no Steven Colbert!)

I was fortunate enough to be the first person to have my question answered by Lessig, which seemed to set the tone for the rest of the Q&A about how Lessig proposes to reconcile his "free use" culture and hybrid economy proposition, with the businesses interests behind making online video and the protections that are needed to keep it thriving as a business model for copyright owners. Read on, ReelSEO "free users…”

Encourage Users to Give Value Back

The following is Lessig's full response to my question during the Q&A portion

Note, this is a poor quality screen grab - if you have an HTML5 capable version of Firefox, you can watch the full video here.  Oh yeah, and that isnt my cell phone - someone on location - Oops.

[Video removed]

Moderator:Grant Crowell of Wheeling, Illinois asks,Can you explain what's in it for businesses to be more lax in their enforcement of copyrighted video based on your proposition for a new "fair use" culture?

Lessig: One of the best events that I attended in this debate was at a small meeting in Berlin. One of the presidents of Microsoft was describing to publishers what the future of the Internet was going to be like. He said that the future of the Internet was that every single successful business would become a hybrid in this sense: A business that learns how to leverage value out of users who want to contribute something back to the business.

So think about what Amazon is. People think Amazon is a place to buy books? That's not what makes Amazon successful. What makes it successful is in addition to buying books, it encourages an enormous number of people to give value back to Amazon – through reviews or recommendations, or feedback that helps channel people to the things that they might want to buy.

Google gets an enormous amount of value. People volunteer and literally give tons of stuff to Google; every single search is a gift to Google, because Google learns from that search, why and how people associate with the kind of results they might want.

Institutions like Flickr, for example, build value; or Twitter, or Yelp!, or any of these institutions of commercial value, build their value by encouraging people to contribute something back.

Treat Remix Creators as Creators

Lessig: ...now, that dynamic is complicated. If you do it in a way that most Hollywood lawyers think it ought to be done, for example: David Bowie has a bunch of remix sites; you read the terms of the remix sites, every single bit of creativity that the remixer makes is owned by Bowie. The same thing goes with the Star Wars mash up sites. Every single bit of creativity is owned by Lucas Films. Even in the Lucas case, music that you compose and upload in the remix, is owned by Lucas; it's perpetual worldwide, royalty-free use, however you want.

Now by that way of how they're treating their own customers, their users, their creators, you're telling them really that they're not actually creators. You're telling them that they're "just people doing stuff for free for us." This is the kind of share-propping vision of what the future of digital creativity could be.

But instead of treating your creators like that and you treat them like real creators, you give them the respect of saying, this remix is a copyrighted entity that you own the copyright for, and we want to be able to use it, so here are the terms and we want to give you the freedom to do with it as you want – to license it freely, to sell it commercially... you being to say to your consumers (who are now your creators) that you respect them. You want to encourage them to produce and to create in a way that treats them like creators.

My view is that you're going to see more and more businesses seeing the second strategy gets a better response from the very consumers, the creators who are adding value back; and that's what going to make that strategy beat the first one.”

The Remix Culture, Video Communities, and a Hybrid Economy

Lessig went on to talk about a hybrid economy – where there's a free, sharing economy that allows the provider to make money on top of it. The obvious example of this in video are the UGC and video sharing sites like YouTube, which also allow for monetization through shared revenue of advertising.

So Lessig's argument stems around if you can build a community where other people will share in the work, because there is a value from it they're getting in return, and monetize that community's content and online activity (and figure out a monetization structure for others), you will have created your own hybrid economy based on your self-generated, free-use culture of shared content. And perhaps, if you don't have the resources to generate all of that, you can participate in a business model and community that allows you to do all of that.

Questions Regarding Lessig's Argument

But Lessig's argument leaves more questions to answer.  For example:

  1. How could you get people to agree on what is a fair compensation for a remix of somebody else's copyrighted work?
  2. What revenue-sharing standard could you establish that could be enforced in copyright law, and how would you even be able to measure that?
  3. Who would have the authority to enforce it?
  4. Would it be private entities that set the commercial policy, and have the authority of the law behind them (like stock image agencies already do)?
  5. Would it require other nations besides the U.S. to agree to a more universal standard of copyright law and commercial residuals? (Yeah, like China is going to be on board with that.)

This is also important to remember: remix video does not generate all its revenue from online licensing or advertising. Remix video has also been used for promotional purposes of an artist or an event, or to showcase a portfolio towards acquiring clients. Both of these are other common examples of commercial use. So the work is made public, and money is exchanged as a result, where does the original copyright owner get their due? Do you now have to require that all videos be digitally watermarked, so they can always be traced whenever they've been included in any form by another user? (Damn, we're getting complicated, aren't we?)

And as for Lessig's examples of what companies have been successful – those are all huge companies. Most of us do not have the resources to build a vast video empire that's funded by a major media corporation (As Comedy Central and the Daily Show have with VIACOM), work with a large team of video producers and editors, hire top talent, combine it with a large television audience, and lure major advertisers to support all of that. Even when you're able to manage that on a much smaller scale, you still have to distinguish the fair use guidelines for what's "newsworthy" (including satire and parody) vs. being a direct commercial proposition – the latter of which has much less protection under fair use laws, even which Lessig himself would advocate in favor of original copyright owners.

Lessig admits that he has a gigantic amount of work ahead of him, just by the fact that he says Congress is way behind the times with copyright law (and that's where new legislation would eventually need to come in). But you can see more of Lessig's battle at his activist community site, FixCongressFirst.com.

I'll be sharing more of the presentation by Lessig (and the rest of the Q&A) in the days to come. Regardless of what your own stand is on copyright law with online video, just by the widespread size of how much of the population online takes other people's own copyright video for their own use (including commercial use), it definitely deserves more discussion from our own community at ReelSEO on how we treat our own video works and the people who use them.

In the meantime, for the hardcore into legal issues with online video and copyright law, I recommend checking out Lawrence Lessig's video channel on Blip.TV. For the softer-core, you can enjoy what I have for you below, Colbert's Lessig-inspired video remix challenge. (Boy, now if only Comedy Central's parent company, VIACOM, could be so understanding with ALL of their video content being available for this kind of fair use!)


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About the Author -
Grant Crowell is a veteran “social video stylist” working in video marketing since 2005. He has worked in the online marketing industry since 1996 providing digital strategies and development to enterprises and entrepreneurs of all sizes, including Video SEO, YouTube marketing, video UX best practices, performance testing, legal issues and ethics. Contact Grant @ http://grantcrowell.com/. View All Posts By -

What do you think? ▼
  • mindbox

    Great post, this is something that is rarely talked about.