In this age of digital media
the experts will tell you it's all about the content. After almost two decades the novelty of the
Internet has worn off and what was revolutionary is now the mundane. Truth be told, nobody promotes themselves as being online anymore,
it's just expected that you are.
And it seems everybody is.
From your grandmother to multinational corporations the Internet is
awash in content. It happened fast, so
fast that traditional media can't keep up with the pace. Content is no longer limited to a newspaper on
your doorstep, a movie in a theater or a program on television. A fact that the NBC Universals and Disney's
of the world can't stand.
In the 80's the advent of the VCR sent the Motion picture
industry into a panic with then MPAA president
Jack Valenti proclaiming, "Their
(VCR manufacturers) only single mission, their primary mission is to copy
coyrighted material that belongs to other people."
The late 90's saw the
music industry decrying the
evils of digital music players. Most notably the case of
the RIAA versus DIamond Multimedia. The
RIAA asserted that the simple act of copying music to an MP3 player like the
Diamond Rio even when restricted to personal use was a violation of copyright. Fortunately the courts found it wasn't but
the decision wasn't based on a rapidly outmoded copyright law but rather what
comprised a recording device.
Succeeding years found both organizations repeatedly claiming that new consumer friendly
technologies threatened the fortunes of the entire entertainment industry.
Of course history shows that it hasn't but not before decades
of legislation had weakened consumer rights and made the whole concept of copyright
law deliberately ambiguous.
The result is an entertainment industry who views the public
first as thieves and second as customers.
The concept of "Fair Use" frequently finds itself at odds with
the entertainment industry who views any use not explicitly controlled by them
as an infringement of copyright.
For the uninitiated the doctrine of
Fair Use is not so much a
right
(at least in the U.S.) as it is
a defense when accused of copyright violation.
It's basically a four step criteria to measure whether use of
copyrighted work is eligible for exemption from copyright law. Generally the rule is that Fair Use applies to
non-commercial or educational uses or commercial uses that can be shown to not
diminish the original work. There's more
than enough room for interpretation, however, and that's frequently decided in
favor of the copyright holder.
Which translates to a virtual flip of the coin any time your
use of alleged copyrighted material strays into new territory.
For example, upload a family holiday video to YouTube and
you could find yourself on the receiving end of a copyright complaint if ol'
Blue Eyes(Frank Sinatra) happens to
be belting out Silent Night in the background.
Even if you make the video private and accessible only to your family
and not the general public you can still be considered in violation of
copyright.
What's the definition of original content anyway?
You may do a weekly video
podcast but if anything in your video displays an element someone claims as
copyrighted material you've suddenly lost your right to monetization under
YouTube's rules at the least. At the
worst you can find your video removed and receive a "copyright
strike." Too many of those and YouTube will close your account.
More than just an annoyance the entertainment industry has
engaged in legal intimidation in an effort to protect an outdated content
model. Is there really a threat to a
copyright holder's interest if someone uses a clip from their content in an
entirely unrelated work?
What if you just want to make fun of copyrighted but
publicly available content? If so is it
considered a parody or a satire? Hint: One
is covered by "Fair Use" the other isn't. Most
people don't even know there's a
difference but under copyright law there is.
Even the alleged "New Media" succumbs to the
pressure of the old guard. When the
Digital Millennium Copyright Act (
DMCA)was signed into
law in 1998 savvy ISP's lobbied for some degree of immunity by way of the
"safe harbor."
They saw a
future rife with litigation for simply operating a medium and wanted no part of
it. Safe Harbor holds ISP's and later
content hosting services like YouTube
harmless in any copyright infringement claim. So long as they don't actively participate in
the infringement they get a pass.
Unfortunately content creators who run afoul of the DMCA have no such protections
and have to rely on Fair Use defenses.
Now a bewildered public is forced to learn about words like "transformative","
derivative" and "Fair Use."
And to think that all you wanted to do was to share a
holiday memory with grandma on YouTube.
These are questions
we shouldn't have to answer in a creative society. The history of mankind is built upon the
creative output of those that came before.
Without the wheel, for instance, there would be no automobiles and transportation on the whole would be a
very different if not inefficient proposition.
So should someone have patented the concept of a cylindrical
object for the purpose of rotating around an axis ? Perhaps but it should never have been
expected to exist in perpetuity. If such
a patent existed it's entirely possible, for example, that we'd be controlling
the direction of our cars with levers instead of that familiar direction
control device we know as a steering wheel.
The holder of the patent (or copyright) could prevent any
use not explicitly under their control which would include anything that
resembled or made reference to the wheel
product.
That sounds ridiculous but is exactly what is happening with
copyright law now. No reasonable person
would deny anyone the right to profit from their efforts . The problem arises when protection of those
rights subverts the very innovation that copyright sought to protect.
Even if you never run afoul of someone else's copyright you
still suffer the consequences.
Why, for example, in an age of almost instantaneous access
to information do we still have artificial limits placed on how we consume
media? The entertainment industry would argue that
there's a minimum period of time necessary to protect their revenue potential.
That argument ignores the revenue potential afforded by
alternate modes of content delivery. A
friend of mine recently posed a question to me.
He said, " Why do I have to wait months for a new movie to be
available somewhere other than a movie theater?"
You know, I have to agree. He
brought up the fact that many people have home theater systems that could offer
an excellent viewing experience. To me,
I'd rather see a new movie in the theater and I'm sure I'm not alone. Nonetheless, I shouldn't be denied the
option.
Seeing a movie in a theater is a "premium"
experience and I'm willing to pay more for it. However, I'm not willing to support a business model rooted in the middle of the
last century to get it. There
was a time when the only way to see a first run movie was at a theater. That's hasn't been the case for a decade now. It's not about the technology it's about revenue.
There are very few cases where a 50 year old business model is
relevant to contemporary markets but the industry doesn't it see it that way.
In some cases new
entertainment content will go straight to online sources like YouTube, direct
to DVD or even services like NetFlix. So
with alternate delivery mechanisms available do we really need so many
theaters?
Should we be limiting our
entertainment options based on nothing more than propping up an industry that
refuses to respond to a new market dynamic?
I'd rather have a few really great theaters offering a
superior experience than a lesser one from a business model that's groaning
under its own weight.
Remember we're still talking about restricting content here. In some cases, your content if someone deems it a threat to their copyright.
We're also talking about restricting your choices. The least of which is your opportunity to use content any way you wish
I've never been a fan of change for its own sake but when it comes to copyrights I don't have to
betray that rule because change desperately needs to happen.
