Saturday, October 24, 2009

Vanderbilt conference, part 3

Panel 3: User Generated Content: Boon or Burden

Laura N. Gasaway, Associate Dean for Academic Affairs, University of North Carolina

Topic: How institutions deal with digital content. Digital content is changing research and library services. Libraries always acquired and used digital content, and used digital tech to preserve analog works.

Four issues for libraries: Creating and managing digital content; creating, hosting, and managing user-generated content; using user-generated content; assisting students and others with their creation of UGC.

Many copyright issues, including new ones about curating and preserving websites. Continues to be confusion among librarians and archivists, especially when collections mix public domain and copyrighted works.

Libraries have been creating their own UGC for some time. Library blogs: NYPL etc. More than 3000 staff for 87 branch libraries—they also tweet daily. Also creating and managing social network sites. Especially for younger users, it’s a way to advertise services. UMinn’s UThink, where faculty, students and staff can post content. Why do libraries host blogs/take risks of crap showing up? Promote intellectual freedom, build communities, explore links between blogging and traditional academia, and preserve institutional memory.

Libraries also organize material that’s neither created nor hosted by the library—online search tools, links to relevant articles (cf. Yen’s discussion earlier). Pointers/finding tools. Also evaluate content, similar to what the library does when it decides what to purchase. Big issue for schools: wikipedia—students don’t know its lack of authoritativeness.

Filtering: control/organization issue. Public & school libraries filter, often not because they want to but because state law or federal funding requires it. Content-based and not copyright-based.

Libraries that host UGC could be required to remove it if they receive a notice.

Internal library uses: creating exhibits etc. Display on Harry Potter might use dust jackets, photos of the actors, news clippings—what about including fan fiction and blog postings as well? Same considerations as for other users of UGC, but libraries are public forums and may achieve greater distribution.

Libraries may also have the advantage of exceptions for face-to-face teaching and distance learning. Face-to-face: copy must be lawfully acquired if it’s an audiovisual work. If teacher shows YouTube version of TV show, is that lawfully acquired content? Might not be! Distance learning: all types of works must be lawfully made to use in distance education, not just audiovisual works.

Libraries get asked questions all the time about fair use, because they maintain AV equipment. Undergraduates stand there begging for help, and librarians end up giving them hints; have to tread a fine line. Pointing them to resources is about the best librarians can do—what the librarian might do herself is likely to be broader than what she’d tell a student, so as not to mislead the student.

Traditional library practices can help, but we will never catch up to the newest tech—clarity on fair use seems illusory at best; there will be new cases with new results.

Michael J. Madison, University of Pittsburgh School of Law

He doesn’t much like the phrase “user-generated content” because it marginalizes certain types of content and certain types of people. Participatory culture, indigenous content, community-curated work, free culture—all these include some people/stuff and exclude others. He likes amateur art, primarily because it focuses attention on what he wants to talk about.

Themes: knowledge, in the colloquial sense—copyright as a system for producing knowledge. Amateur art, and its derivation from pro art and vice versa—the line that crudely divides our thinking about amateur/pro. Shepherd Fairey case as example. Not interested in whether the poster is fair use, though he thinks it is; not interested in whether Fairey copied protectable expression, though he thinks Fairey did. More interested in how we go about thinking whether the poster is the kind of expression we want to protect/legitimize.

Obama poster is not the only version Fairey used—this is the Obama Hope Stencil Collage, hanging in the National Portrait Gallery. Fairey is a trained professional artist, and has been commissioned by Warhol Museum to run around putting his posters on walls. This is a work of fine art, but there are websites around that allow you to create a Fairey-style icon out of any image. Obamicon website is an example.

The fact that you can become your own Shepherd Fairey: we don’t need training in art to produce something very much like what the trained artist produced. Can we think about this as a separate category from classic pro art?

Van Gogh: often cited as one real paradigm romantic genius author-figure. Jamie Boyle cites him. Madison was surprised to discover that Van Gogh was a copyist, not simply borrowing technique or tradition; he painted the same subject matter as other artists—admirer of Jean-Francois Millet. Well known for portraying peasants. Extremely explicit about what he was doing as a matter of theory. Copying for practice: learning how to paint.

Van Gogh says in his letters: I’m justified in working on things Millet didn’t have time to paint in oil: translating into another language, that of color, adding light and shade to woodcuts. It’s taken a lot of time and trouble. Why it seems good to me to copy: they are always asking painters to be nothing but composers. But it isn’t like that in music; someone who plays Beethoven adds his own interpretation. It’s not a rule that only a composer should play his own composition. I started copying accidentally and I find that it teaches me and sometimes consoles me. I did it out of profound and sincere admiration, an attempt to make his work more accessible to the general public.

Sounds very much like an adaptation/derivative work. But there’s more to it. Specific disciplinary contexts: music composition v. painting. Teaching: Van Gogh is acutely aware that his art is not about creativity or originality for the sake of originality or creativity. He has something to teach and something to share; in some sense teaching himself skills/insight, and also sharing with the public. Product and process, related. Van Gogh thinks of himself as a professional artist.

Might disagree with Madison’s judgment on the merits that Van Gogh was engaging in what today we’d call fair use. In fact, Millet was successful during his own life; Van Gogh had no impact on Millet’s market; Van Gogh wasn’t generally appreciated until after Millet died.

We could look at Van Gogh’s work in a modern sense as transformative, but that doesn’t explain a lot. Creativity isn’t an effective line. Rather, it’s organized around a professional discipline with commitments to teaching and learning.

Returning to the present: copyright as knowledge producing system. We’re familiar with some rhetorical moves from history: Statute of Anne’s “encouragement of learning,” Constitution’s “promote the progress.” Maps, charts, and books, first subjects of copyright law, was directed to useful/educational material, not towards entertainment as copyright has become. Progress has largely disappeared from meaningful impact on the law—Eldred. Today we talk about creativity and authorship rather than knowledge, but we shouldn’t be so quick to write knowledge off. Copyright is about producing, distributing, stewarding knowledge in material forms, practices, and ideas. For historical/doctrinal reasons, creativity has become the watchword, but it’s not part of the text of the statute. Now, with amateur art, creativity gives us trouble. Hard to apply default standard of creativity, distinguishing between casual authors and pro. Everyone is now an author. The creativity construct doesn’t give us an effective tool for drawing lines about what should be in/out of the copyright system.

Suggestion: knowledge, in broad/metaphoric sense, might be an effective alternative. Patent law has largely avoided this—law talks a lot about “teaching” the public the art.

Question then: can a focus on knowledge do more and better work than creativity? It’s not a panacea, and doesn’t have built-in concrete solutions; a conceptual matrix.

Analog cases like the hypo Millet v. Van Gogh come out about the same on his theory. Intermediate case: Rogers v. Koons—an early “digital” case because it was a kind of mechanical artistic creation, conceptual art; defendant didn’t physically create the sculpture with his own hands. If you apply creativity, it’s easy to understand how the court judged Koons uncreative, but if you apply a knowledge-based, discipline-based theory, it might favor Koons. UGC: Fairey. In the context of non-professional uses, we should separate our roles as consumers of other creativity from our roles as creators/recreators/remixers. How we access that work is a matter of being a consumer, but when we’re teachers and learners we’re doing new stuff. How explicit must a disciplinary context be? Van Gogh explains himself in his letters, but that evidence isn’t often available so we’d need implicit senses of what was going on.

He thinks his approach is soundly based in copyright history and policy. Knowledge also has an explictly social basis: teaching has its basis in the community. Modern copyright law is uncomfortably individualistic by contrast.

If this is worth pursuing, then there’s a lot of work to do—build a syntax and vocabulary to translate the concept to specific legal rules, including evidentiary considerations.

Rebecca Tushnet, Georgetown Law

I don’t know how well this worked, because my medication was hitting me hard, but I gave a talk about the EFF’s proposed DMCA §1201 exception for noncommercial, fair use remix video, tracking my testimony before the Copyright Office.

Moderator: Steven Hetcher, Vanderbilt University Law School, for Madison: does knowledge fit into “purpose and character”? Fairey: the intuition is that the photo has very little originality: it’s just Obama, and anyone with a camera could have taken that photo. Andy Warhol today would be sued out of existence, when he took photos of Mao/Monroe.

Madison: he thinks knowledge is a structural change; purpose and character would be a logical place to integrate knowledge into the fair use apparatus. On Fairey, Madison’s intuition is different—it’s not the photo anyone would have taken; part of the AP’s case is “respect for photography” and photographers as artists. Some of this is rhetorical overkill. But we tend to undervalue the character of the art that goes into something like photojournalism. There is discipline, training, professionalism. He wants to focus more on what Fairey did than on what Garcia did.

For Gasaway: How many DMCA notices does a university library get?

Gasaway: Many libraries are part of institutions. The notices come through the university. Public libraries are often ISPs. Hasn’t asked how often they get notices, but as libraries host more stuff, they will get more.

McKenna: operationalizing this construct of Madison’s. He’s not sure how to apply the Van Gogh argument elsewhere, such as timeshifting on a VCR. How does knowledge play out there? Knowledge = nature of the user in the community, and there’s a time aspect to that—if we decide something isn’t fair use, then no community develops, or develops sub rosa, but fairness means the community structures itself around the practice.

Madison: Skeptical of whether timeshifting fits into his scheme. SCt might have been better off coming out the other way. Vidding community is an example of a practice coming into existence.

McKenna: What about Napster users?

Madison: Millions jumped into the Napster pool overnight. Is that plausibly characterized as a community of practice/disciplinary community? Probably not: a bunch of people trying to get copies for themselves. There might be learning-oriented subcommunities, but that’s about it.

Bohannon: Copyright generally shies away from process and tries to look at works on their face—PGS work analysis. Those things are manipulable—people can always tell a story that’s about learning. Does this resurrect the idea of a new work, doing something different? If we found a new work of authorship, we used to say there couldn’t be infringement. (Is this true?) Was Van Gogh free riding? Maybe a tiny bit; he could have picked a number of things on which to practice. Free riding was relatively little given new material. Is knowledge about the new work and what it shows us about the old work, or is it about process/intention?

Also, what if there were harm? Absent harm there’s no reason to find infringement. But if we find harm, can we reject a copyright claim anyway?

Madison: Suppose Millet had a robust market and Van Gogh takes the legs out from under it. He says that’s still not enough. Reviving older ways of thinking about infringing. In terms of process/product: to some extent, he’s willing to look at product. But focusing on work-to-work comparison (except for PGS works) is overstated—there’s a fair amount of process consideration implicit in Feist, as well as Bleistein. Doesn’t want to displace product with process, but blend them.

Cotter: Terry Fisher proposed a definition of transformative use that he describes as more process-oriented. A use of copyrighted material that either constitutes or facilitates creative engagement with intellectual products. Wouldn’t limit it by discipline.

Madison: He’s talking about a conceptually similar line of argument. But Fisher thinks the legal system could never actually implement a scheme at his level of generality. Madison ratchets down and looks at disciplinary/community context.

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