How it works: Understanding Copyright Law in the New Creative Economy

Re:create Coalition’s How It Works: Understanding Copyright Law in the New Creative Economy

Alex Feerst, Corporate Counsel, Medium: Medium strives to present a range of options for community-driven and commercial and in-between writing. Porous: some writers have found ways into pro and semi-pro careers.

Katie Oyama, Sr. Policy Counsel, Google: Showed a video about the Missouri Star Quilting Co., whose success drives a whole town’s and it’s all because of YouTube.  YT allows content creators to experiment at lower costs; allows time-shifting by comedians (e.g., John Oliver); opens global markets. Psy’s Gagnam Style was the first billion-view video, and had enormous effect on an entire genre: looking at metrics, K-Pop moved outside Korea in a big way; increased ability to interact w/fans.

Becky “Boop” Prince, YouTube CeWEBrity, Internet news analyst: Started out making gameplay videos, got interested in ©, now makes a living creating news.  Diversity of creative voices/creator can be central v. network TV; global audiences allow you to prove your worth w/o a gatekeeper.

Betsy Rosenblatt, Legal Director, Organization for Transformative Works: 700,000 registered users on AO3, 150 million page views/week, all through volunteers.  Fandom brings people together who wouldn’t have found each other; underrepresented groups in particular. Find audience of those who love what they love; gift economy isn’t about making a living, but about making yourself.

Prince: She never thought she’d have an impact like this, but found people were watching to help themselves feel better.

Rosenblatt: Money isn’t the whole story. Online creativity can/does lead to financial success, but also creativity, selfhood even without commercial success—we need all the options.

Feerst: Low-cost production means that content can go viral; open letter to CEO on Medium went viral and the company raised people’s salaries—the effects are unpredictable.

Oyama: secondary markets: people can gain audience, which sometimes becomes part of the overall business model; YouTubers getting book deals.

Rosenblatt: we collected powerful stories from around the world; people told us that making transformative fanworks literally saved their lives.  People talked about depression, about not knowing others shared their sexual identities, about how no one was representing them in major media. One wrote stories about the X-Men and being in a wheelchair and found others to talk about her experiences—connecting via connection to a superhero in that situation.

Prince: discussed an instance in which a viewer imagined having her and other vloggers as friends in high school—he felt accepted with us.

Feerst: “Why I don’t talk to white people about race”—opened up a far larger discussion online though started more personal.

Oyama: a way to make connections to others’ humanity.

Feerst: Running your own website is difficult.  Instead, you can sit inside our network for distribution via Twitter etc. Value of creating within network even fro new media launches—Bill Simmons from ESPN is building on Grantland model—allows interaction between market sectors, finding new voices.

Oyama: Disney used YouTube well to reestablish Frozen, which topped box office for longer than usual.  90% of Content ID matches now stay up; ½ of music revenue on YT comes from UGC.

Rosenblatt: The OTW can’t build Content ID, but fanworks often drive demand. Users are often creators, and boost/build markets for ©. That means we need a system that encourages people to build on what came before.

Prince: Fair use is really important: reaction channels are a new phenomenon, polarizing—sometimes it may be infringing but often it’s critical commentary.  She’s had a quote from Buzzfeed generate a Content ID block even though she was talking over the clip and it was a short clip for commentary. When your voice can be blocked, fair use is a huge issue. Content ID is only available to those with a lot of content—it favors large companies over small.

Oyama: On balance, US system is remarkable in how it lets creators thrive.  New economic sectors based on fair use are growing.  Google search snippets depend on fair use.  Safe harbors are also core protections for free speech; YT has 400 hours/minute uploaded and couldn’t work otherwise.  §512 also allows small companies to grow; this is under threat outside the US.

Feerst: We’d all like our name attached to our modest original contributions, but anger may lead people to use DMCA when © isn’t the problem. © is a powerful regime for regulating all content. When people feel plagiarized, they may turn to ©.  Quotations shouldn’t lead to DMCA wars but they do in some cases.  The DMCA helps sites, but only by rolling back ©’s overcoverage in which everything, even shopping lists, is covered by default.  But the DMCA also means we’re incentivized to take things down even when the claims are weak. Counternotice requires people to surrender personal info and is rarely used.  A lot of folks who don’t like a picture or think they were plagiarized use takedowns.  Copyright and 1A are fundamentally in tension. We often see DMCA used as a frictionless means to get takedowns, as when someone paraphrases a text exchange they had and the other person is unhappy. That’s copyright misuse; the incentives of © are not involved.

Rosenblatt: Fair use is designed to protect the 1A. The OTW believes we can screen notices for legitimacy and not just automatically take stuff down. The people who come to us often feel voiceless; they fear counternotice in a system they already don’t trust.

Prince: Privacy is important. Counternotice requires revealing name/location. Someone figured out her location and sent a false takedown using a username referencing the Boston Bombing: clearly threatening.  Counternotice required revealing personal info.  Result: Chilling effect and self-censorship.  Multiple strikes filed at once can be particularly damaging, because the DMCA requires repeat offenders to be punished; your account can be shut down before you can respond.

Josh Lamel, Re:create director: We’ve heard that over 50% of Amazon DMCA notices are by competitors attempting to keep competing books from being sold—being off for 48 hours can kill a book’s rankings, which are key to its ability to be noticed. [This is important and not well understood yet in the policy space: the profiles of DMCA notices are very different across services. YT receives different notices from Google Web Search, which is different from Google Image Search, which is different from Wikipedia, which is different from Wordpress.]

Prince: Same thing happens on YT for ranking.  Can be weeks you’re gone; if you’re not growing you’re not picked up by the algorithm.

Oyama: we try to facilitate due process. Big US © owners are generally responsible but activists in other countries report they face abuse. In a Content ID dispute, about ½ the time the sender will release the claim. Sometimes putting people together can be effective.

Lamel: What would notice and staydown mean?

Oyama: worst thing for a startup is to change the rules. Government obligation doesn’t work in many circumstances. It’s technically impossible, and doesn’t account for fair use or licensing. SOPA died in part for these concerns.  There are some hosted platforms that do functionally have staydown, with Content ID, but that doesn’t work for search where we don’t have fingerprints, for startups, for nonprofits.

Rosenblatt: “notice and staydown” is a hollow phrase, too broad and too narrow. They mean mandatory monitoring and filtering. Piracy is bad, but once you require monitoring and filtering you shut down small platforms. We couldn’t do it, especially not in a way that accounted for fair use.  Collateral damage is fair use—using a sledgehammer to remove a barnacle.

Prince: Staydown doesn’t work.  I downgraded the Buzzfeed video and messed with the audio until it went up.  Evasion means it doesn’t work, and also chills speech; many people worry about getting blocked.

Feerst: Saying “build a machine to figure out fair use” isn’t something you can do even with $60 million.  Staydown requirements would skew towards established incumbents.  We have disappointments with the DMCA but it provides a structure we can use.  The problem is how people behave when statutory damages etc. feed up into creators’ behavior, such as fear of using a counternotice.

Oyama: 512 is most critical for startups that haven’t been invented yet (and aren’t here to defend themselves).

Rosenblatt: Think about protecting people’s ability to express themselves. Who gets to speak? Those who already have a voice or those who don’t?

Prince: need clarity, especially globally—creators are in different countries.

Q: How do DMCA wars on YT start?

Prince: Revenue comes from being recommended on related videos, etc.  DMCA claim stops competitor from appearing on search.  Separately, Content ID means people can claim your video and get the $ for it. Music owner may claim 100% of revenue based on 30 seconds in hour long video. 

Rosenblatt: Emotional incentive too, or sometimes just machines. Often our DMCA requests (to AO3) come from matching titles.

Q: Harsher laws in other countries. How can global companies protect creators against those regimes?

Oyama: Other countries do have fair dealing; we are seeing startups and entrepreneurs explain that they need safe harbors as well. Should also be very focused on licensing regimes. We have resources to have teams for each country, but music and film systems are extremely fragmented. We’ve given $5 billion to music from YT, but it has taken huge time and effort.

Feerst: We operate in the US, though we’re online and have goals to expand. One reason platforms largely grew up in the US is the DMCA.  Largely we are less able to protect users overseas. Small companies with no expansion plans overseas may roll the dice, but companies that hope to grow have to make choices.