NYU platforms conference part 2

Platforms as Co-Creators

Moderator: Barton Beebe
Ideal types of creators/communities, e.g., romantic communities of vidders who create for noneconomic reasons, who are now being driven out by other groups? What’s the relation of platforms to creators?

Facilitators:
Greg Lastowka
His book is about virtual worlds.  Some of the most valuable forms of creation aren’t creativity per se but labor. Artificial scarcity often due to organization as games—currency is a form of content creation; creative ways of making virtual currency are prohibited (like Beebe’s recent piece on the sumptuary code—these are artificially created ways of distinguishing status).

Copyright in virtual worlds is complex because the software is copyrighted and the images/audio are copyrighted; everything is created, even things that appear metaphorically natural. But users are also creating content—most interesting things are usually other players and how they use the affordances of the environment to entertain each other. Versus platform: user will always lose because they have no ability to resist the license, no ability to monetize creativity; platform can oust the user at any time for no reason. Little traction for content creator trying to benefit from investments in platform. If the contract didn’t mandate that result in all cases, would be fascinating question of how the copyright ownership would be understood. Every machinima in Second Life is arguably a derivative work; incorporating structures other people have built. Second Life ToS has covenants to virtual land dictating filming rights in virtual environment. Presumptive license to take pictures of places you visit. But not to take videos—need license from others. Blizzard has machinima licenses for WoW for noncommercial purposes. Private ordering is creating more room for content creation by users than the ToS might lead you to think were required. (Though they can cut those off at any time and will if you annoy the gods enough.) A feudal environment: control, but mutual duties of loyalty and good faith, which the virtual owners can enforce largely as they please. Users are largely satisfied with current relations. There will be injustices, lack of due process, but in the main things are going pretty well. (This is why relations of dependency are troubling—by treating freedom to operate as a matter of grace, you get participants who generally accept their dependency and feel like they owe the owners fealty/lack of criticism, though they also occasionally set out in open rebellion at which point others turn on them and call them ingrates rather than participants.) Problem: too tentative about allowing users to create new content—fear becoming target of Viacom if they give vibrant tools to users. So the tools are locked down. Second Life is a litigation magnet, while WoW avoids lawsuits by limiting expression.

Nari Lee: from a non-native speaker’s perspective, a platform is open—no barriers to getting on it, and you stand on it and use it to do something/draw attention to yourself. Can an object be a co-creator? Her perspective: background in open innovation. Pfizer is now talking about its open innovation practices. What does it mean when a word becomes a catchall for marketing rhetoric? What information is hidden by the term?

Different models: Creative works can’t be claimed by one user alone on Wikipedia. This creates a certain culture of joint contribution/control. YT is different: the type of creative work is individual-oriented and consumption-oriented. Users are under the impression that they can’t influence the structure/configuration of the platform and seem to accept what they’re given. They work with it. (Consider the current YT Copyright School video, where the only response seems to be to try to create a counternarrative, but there’s no certainty that people forced to watch YT’s copyright video will get another, more fair-use oriented perspective on the law.) As long as the rulemaking is transparent, users seem to accept the legitimacy of the rules or at least follow them.

As a regulator, how to react to these different types of platforms? In certain situations, private ordering may be better. As platforms differ, the context may matter to the appropriate rules. Users’ information is the most important factor so they know whether they have the choice of influencing the structure.

Salil Mehra
Has studied Wikipedia’s dispute resolution procedure.  Not sure the lessons apply to all platforms. Downstream effects—not just a transaction between two parties. Where does the investment come from? Wikipedia has a lot of user investment and they really want other people to use it. Initial idea on Wikipedia was technolibertarianism: resolve things through consensus/lack of rules—but that doesn’t scale up. So they began an arbitration procedure.

Wikipedia was a poster child for social production for fun, joy, altruism. But there’s also a lot of painful work. 100s of people were involved in the arbitration system, its enforcement—this isn’t fun, but there was a larger dedication to the project that made them willing to do this. Begins to look like civic organizations, NGOs: dedication to goal makes people willing to do scutwork. Also, there’s a lot of exclusion: dispute resolution was there to weed out bad actors and weed in actors who weren’t that bad. If you were antisocial or impersonating people, you’d likely be banned. If you were editing in violation of Neutral Point of View, you were less likely to get banned. If you were antisocial or impersonating and violating NPOV, you were less likely to get banned than if you were simply antisocial/impersonating—they wanted to preserve and generate community energy. There were some disputes that were minor (what’s a notable fact) but others about political/religious topics that get people exercised. The system isn’t geared to resolve factual disputes but to perpetuate energy to keep the community going.

Wikipedia is built on a notion of conflict. Are there other groups that can do this kind of conflict?

Dotan Oliar
How platforms affect the type of things that are created on the platform. Likes the ecosystem metaphor. Law and norms may work as institutions, and thus as platforms—set of rules/relations between people like infringement and defenses that gives incentives and disincentives. Our law benefits commercial parties and disincentivizes noncommercial creators, e.g., with term extension that helps Disney vis-à-vis independent creators without a backlog of works and who don’t work for profit and can’t sustain increased cost of inputs from propertization. Creative Commons: use law as a platform to achieve a different purpose.

Different rules affect not just how much is being created, but also what. Social norms among stand-up comedians: copyright law is not very effective in protecting jokes because of idea/expression, independent creations, and cost of enforcement. Who creates is intertwined with the norms and rules. Many stand-up comedians make $30,000-40,000 a year if they’re doing well. $25 a night at a comedy club in NYC. Edgy content, sometimes countercultural or offensive. Reputation is the form of regulation, not law. Club owners might not book you if you have a reputation for stealing jokes (they’re often former stand-ups themselves or love the art). Other people may not want to share a bill with you if you have a reputation for theft. Threats of physical violence also occur, not surprising if there’s no legal way to settle disputes.

Could we make law worthwhile to use? Fee shifting, supracompensatory damages, end of idea/expression and independent creation. In this hypothetical world, clubs would need to protect themselves; there’d be commercial parties like entertainment chains that could achieve economies of scale in clearing material. Lawyer would be behind show; show would be cleaner, more family-friendly. Different type of comedy than what exists now. Co-authorship norms in comedy are different: person who comes up with the premise owns the joke, not the person who provides the punchline, unlike copyright’s co-authorship. This is because without law you need a simple allocation rule so that if you see someone telling a joke after someone else did you know the second one “stole” it. Given the audience, the system can’t recognize joint ownership without frustrating enforcement possibilities.

These are different ways of regulating, each with advantages and disadvantages. Current norms produce a certain kind of humor, but old norms were more participatory (retell a joke you heard/share it with other people). No concept of fair use among comedians.

Rebecca Tushnet
First, I want to contest Beebe’s definition of what’s going on with vidders (brief definition)—romantic authorship has historically been understood to be individual; by bringing in communities and particularly communities organized around making transformative works, explicitly relying on what’s gone before, you’re already changing the individualist model, though there is always the temptation to celebrate particular auteurs because some vids are more fun to watch than others.

What particular kinds of expressive content and economic value do platforms tend to produce or not produce? I talked about the Organization for Transformative Works and its mission to defend and preserve noncommercial transformative works, not just legally, but also against commercialization, with its zero-sum games (contests/rewards for most popular authors). Commercial platforms pose risks of change that aren’t in users’ interests: YT bragging that it’s succeeding because user-generated content is a decreasing percentage of the video on the site; delic.io.us’s new owners have different ToS that allow removal of offensive content, much broader than the old terms.

Contrast to the Archive of Our Own, one of the two largest majority-female open source projects online. Not zero-sum; designed to be noncommercial and with a preservation mission; designed to follow creators’ desires for tagging, bookmarking, but within a social context—folksonomy that is also curated. Also, given our users’ concerns for managing and siloing reputation, we think differently about pseudonymity—no to government names, yes to persistent identities—and privacy: separation of fannish identity from government identity. Allow orphaning works without removing them so that identity maintenance can take place without destroying the stories.

Beebe: are you idealizing the small/noncommercial platform? The author may not be acting alone, but now we’re romanticizing the community/the folk, weirdly premodern though highly teched-up. Is it scalable? What gives it its charge is that it’s not scalable but can generate authentic human voice. HuffingtonPost seemed to be groovy, then openly sold out—what will happen to all those people who saw their world change dramatically in a day? Were they chumps? Same with SSRN: it’s a for-profit institution, publishing your stuff without your permission; delete the link to a paper offsite if it’s in your abstract.

RT: I agree that we shouldn’t idealize the small/noncommercial platform because most people can’t live there. Strategically it can be important to show really artistically pleasing examples of what you can get when you allow creative freedom, but we need to worry about the 14-year-olds who put not necessarily very good stuff on YT because that’s where we get participation (cultural and political) and where we get our great artists as they develop out of a whole group of people. The Archive of Our Own is not a counternarrative but a story of what we lose in these highly regulated commercial spaces.

Citron: Jeanne Fromer has a paper on the expressive value of giving people credit and how law should accommodate that. SSRN does give credit.

Frischmann: why not romanticize the distributed ability to be creative? Maybe we gain value by doing that; we certainly romanticize commerciality/the market on the other side.

Beebe: fair enough. But there’s a sort of priesthood where we celebrate insular communities. Is there a way to scale that?

RT: We can scale the law by turning the nondiscrimination principle into a tool: copyright now discriminates against a certain set of creators and it shouldn’t. This worked in the DMCA hearings.

Lastowka: He’s an unrepentant folksonomist—the law institutionally discriminates right now against noncommercial activity.

Nissenbaum: idea that Microsoft might claim ownership rights in things created using Word strikes us as crazy, so why is it different when you play the game? Noncommercial/for-profit is not necessarily the right dividing line for platforms.

Michael Geist: highlights the fact that law alone won’t solve this. Copyright bill in Canada had a user-generated content provision designed to protect not just the user but also the platform. The bill died; those who supported it thought it was a great way to solve the issue of legal risk, but the discussion highlights that the commercial risks from advertisers, or whatever your business model is, are also important.

Pasquale: What are the ideal forms of interaction and is law stopping them?

Mehra: we think of these places as spaces of their own, but some structures result from the fear of law. WoW is very sterile, Lastowka says, because of fear of lawsuits. Wikipedia discussants were also concerned about facing legal action and needed to find a way to get the community under control. Chose instead of sterilizing it to adopt an arbitration. Need to rethink copyright to address its tilt against these communities.

RT: We could adopt the Canadian provision!

Gillespie: Two questions: is copyright working, and is noncommercial/commercial the right distinction? Commercial is fundamentally different from his perspective. Copyright is not only too big (universalizing) for these communities, but commerciality also has an effect on becoming outsized—HuffPo wants to get big and sell out; YT is also pressured to grow larger to take advantage of network effects/eyeballs for advertisers. Medium size, focal mission, user participation in governance, workable norms are all in tension with the commercial imperative to grow. LiveJournal tried user participation in governance and let it wither away and the commercial model is a part of that. If we propagate only commercial structures, we discriminate against certain models of governance.

Strandburg: Scalability might not be the right goal. User-generated content allows you to reach down into the long tail. Means that we could try to facilitate creativity to small groups of people who are really only of interest to a small audience—that’s a good! But also: It’s a mistake to think that everyone wants to produce videos, or that everyone wants to watch videos by amateurs. The commercial model leads to different outcomes, but she doesn’t buy the normative distinction, and we don’t want every form of collaborative content to be able to scale because it doesn’t need to. (But unless you have a normative preference for commercial outcomes, if the current copyright law pushes towards commercialization that’s a problem.)

Tools vary: broad tools like drawing software and word processing programs are open, but some people won’t want to deal with that. Narrower tools may induce some people to become creative within the constraints offered.

Ryan: Assumption that nonprofit platforms are more genuine/less evil is not right. Profit platforms have generated a lot of opportunities that didn’t exist—SSRN as a repository for legal scholarship; a relatively low cost model. In the world of YouTube, there are 35 hours of video uploaded every minute. The system is very expensive and requires investment.

Beebe: Canadian scheme: wouldn’t appropriation of part of movie affect the original work?

Geist: Some large-scale copying would have an effect, but Google makes the point all the time that distribution often has a positive financial effect on the underlying work.

Beebe: but wouldn’t they claim that a licensing market for movie clips is being interfered with?

Geist: the fair dealing factors wouldn’t apply here. (I will also note that at the DMCA hearings the movie people admitted that they have no clip licensing program in place and no present prospects for doing so; one key reason is that they have in-place contracts with performers that entitle the performers to minimum payments for any license making a low-cost or ad-supported license absolutely impossible. The only thing you can get from a movie company is a no-action letter.)

Pasquale: SSRN does have problems, among other things with the tournament they’ve asked us to play in and with other downloads. If Bernie Black makes $2 million a year eventually, that will be problematic to the chumps and vassals.

Zarsky: content generated by minors—platforms can sucker people into a warm feeling of participation. What do we do about that?

RT: Courts are going to want to prevent minors from avoiding their contracts despite the theoretical right to disavow. Agree that the culture of being a vassal is destructive to citizenship; then individuals are surprised to wander into a ban/rule violation, and when they ask for due process other people tell them they have no right to complain. (And sometimes, I should say, their complaints are meritless; due process would give them no different result.)

Mehra: Lee’s paper touched on this—hard to make ex ante commitments that capture what goes on. Perfect holding of platform operators to their commitments would be very terrifying for them.