Thesis: This project explores the increasingly important relation of digital and remix/convergence culture to copyright law and copyright holders, specifically with regards to how video and sound properties are handled in the highly open market of the internet. As a creative submission, I will create a mash-up video parody featuring copyrighted content from Apple Corps., Vivendi Universal, and Buena Vista Pictures. My supporting paper will detail the copyright violations that were necessary for the creation of the work, as well as discussion of whether and why the work should be seen as "fair use" and the ways in which our current cultural paradigm calls for a system within which creations in the same class of works can be made without the violation of the Digital Millennium Copyright Act.

Arguments:(1) If laws are in place which protect works which are transformative in nature or fall under other fair use or parody guidelines, a system should be established by which consumers can legally transform their media without having to violate the DMCA by bypassing digital rights management encryption. (2) Our culture is in a transitional state, as technology is making the process of parody and other fair uses increasingly democratic. (3) The creative project itself will be a parody of Hollywood tropes and practices, which are becoming increasingly less dominant in the new age of user-generated content. Fittingly, the final project will be posted on media and netroots darling YouTube to make the commentary complete.

    This was the first article passed into European law concerning issues of copyright, putting laws in place to govern the reproduction of manuscripts by publishers and writers.  It grants a 21-year copyright term to all works that were already in print and a term of 14 years for all works to follow.  The intended purpose of this law, as very clearly and succinctly stated, was “for the Encouragement of Learned Men to Compose and Write useful Books.”

    Thus, copyright is founded on principles of encouraging the creation of new works and to promote creativity by the creators of newer properties.  As much as this works in the copyright holders’ favor, there is a disparity between copyright’s original intention and the practices of intellectual and character property owners, especially today.

    My project, and our modern implementation of fair use, hinge upon the ideas in the Statute of Anne of copyright as an incentive for authors to continue to create works.  A part of this incentive is the ability for authors to build upon existing works, given either their pre-association as holder of the work’s copyright, through licensing, or through more contemporary designations (parody, fair use).

    This is key to my project, as a vast section of the YouTube community essentially revolves around building on existing works and modifying them to add their piece of creativity.

In this case, the Supreme Court rules 2 Live Crew’s commercial parody of a Roy Orbison song is protected under the auspices of fair use.  The court found the new song to be significantly transformative, both building upon the earlier work as a new entity and sufficiently parodying the original in a way that was ruled as fair use.  The court also found a portion of Section 107, “the amount and substantiality of the portion used in relation the copyrighted work as a whole” to be a key factor, deciding that the small amount of the song actually used was significantly small enough, even if that portion displayed the heart of the work.  “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.”

    I reference this case in relation to my project because this case deals with two important factors: parody, and what is said to be the “heart of the work.”  My project will be clearly defined as parody, while at the same time drawing from key thematic elements of the original works, which creates the potential for the project to be deemed as taking the heart of the work.

    This is also an issue as the audio track of my project will be a continuous copyrighted work, taking the original in its entirety and transforming it to a new medium of video.

    This letter shows how simply ludicrous copyright holders can be concerning their properties.  This letter was sent in 1996 to a Manuel J. Perez, who displayed on his MIT homepage an image including characters from the then-lucrative children’s series, Mighty Morphin’ Power Rangers.  The letter was sent by legal representatives of Saban Entertainment, Inc.

    I mention this letter because it displays a highly ridiculous side to the way that copyright holders will sometimes deal with new technologies, and specifically with internet culture.  Disregarding any quality of judgment, Saban sends a cease and desist order to a member of the world wide web who is certainly not, as they deem, practicing any “unfair competition.”

    In fact, at the very least all that Perez’s sit was doing was adding a very small amount of free advertising for the Power Rangers brand and intellectual property.  This is an oft-overlooked factor of the YouTube debate.  When a rogue parodist concocts a transformative trailer for The Shining, for instance, it has only a positive effect on our view of both Stanley Kubrick’s opus and even Peter Gabriel’s “Salisbury Hill.”

    Similarly, the media that I will sample could, upon a strike of popularity, only benefit all parties.

    In Chapter 4 of Convergence Culture, MIT Professor Henry Jenkins discusses the grassroots/netroots communities that form around the creation of digital content.  Specifically, the proliferation of DIY digital video creations based on the Star Wars mythos and collaborated on by fans all across the internet.

    20th Century culture, Jenkins argues, built towards a massive uprising of grassroots culture, which began to truly take hold upon the integration of the internet into daily life.

    If there are any flaws in the current fan environment, as he sees it, they are (as he mentions from Lessig) the proliferation of legislation produced to keep the interests of major character-licensing corporations happy, such as mega-giant Disney, which will be quite able to rest upon licenses of its property for decades to come, even if Disney kept producing creations that are barely profitable.

    Convergence culture heralds the digital age, for sure.  Displaying outright giddiness for the subject matter, and extravagant love for the legions of DIY Star Wars buffs and MMORPG fans which proliferate the internet.  These weekend warriors deal with the same kinds of copyright issues that I will, though they re-craft their sacred universes whereas my method is to sample.

    In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy.  The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.

    One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.

    This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider.  Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down.  If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.

    This press release from YouTube briefly details their partnership with Universal Music Group (UMG), subsidiary of Vivendi Universal.  In this groundbreaking strategic partnership, UMG agrees to make music videos whose rights they own viewable on YouTube.  It also allows for YouTube users to utilize music from UMG’s extensive catalogs in their videos.  In turn, YouTube agrees to remove from their site any content owned by UMG which they choose not to make available, and UMG and its artists will be compensated by YouTube for their properties being viewed on the site.

    The document makes mention of the nature of the partnership: that is, a way for UMG to tap into the vast resource internet traffic, a way to assure that YouTube remains devoted to protecting their property, and lastly an embrace of contemporary convergence culture and the new consumer/prosumer drive towards user-generated content.

    This is an interesting deal, especially considering the rampant speculation of YouTube running into problems with UMG just a month before this announcement and how, in the midst of the YouTube deal, UMG sued two other video sharing networks.

    I reference this announcement because it, as well as YouTube’s agreement with Warner Music Group (which preceded this partnership) are primary evidence of a growing trend towards adoption of user-generated content models, and the willingness of media giants to begin the slow process of loosing content restrictions without direct payment by the consumer.

    I reference specifically the Universal Music Group rather than the earlier Warner announcement because segments from my project will include property (video) that is owned by Vivendi Universal.  While this announcement does not in any way justify the posting of my project on YouTube as a legal action, the existence of a link between the two companies is of note, and hopefully a sign that should property agreements expand, the video included in my project will one day be YouTube-licensed (keeping in mind that this is not likely, as the project will contain copyrighted material from additional companies.

    This section of US Copyright law outlines violations of copyright-managed systems, such as bypassing digital rights management and producing a copy of a video in another format.  This makes it illegal for consumers to bypass encryption that restricts content, for instance, to one device for purposes of moving the same content to another.  The law also includes information on the Librarian of Congress’ selection of a class of bypassable works, exemption for educational institutions, and what construes technological violation of copyright encryption.

    Section 1201 also states that no outstanding violations of this section will hinder a defendant’s fair use argument.

    This section of US Copyright law is particularly salient as in order to create my project, I will be bypassing both DVD encryption codes and any DRM embedded into the music used for the piece.

    These are both clear violations of Section 1201.  However, were my project ever to come under copyright scrutiny, I would hope to find protection under this violation being carried out within an academic institution, for purposes of parody, and creating a transformative video which falls neatly under fair use exemption.

    This is also important because for the vast majority of videos on YouTube that contain copyrighted content owned by major corporations, that content has been captured from a source which implemented digital rights management, and thus the uploaders have infringed upon Section 1201.

    This section of U.S. Copyright law sets guidelines and restrictions for internet service providers and internet services which use their own servers to host user documents.  It allows for an internet service to continue functioning without fear of reprisal from copyright property owners so long as the operators of the service are not participating in the infringement and do not know of the infringing material’s existence on their servers.

    This governs server liability, stating “a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.”

    It is this kind of exemption that keeps sites like YouTube and BitTorrent search sites up and functional.  If the copyright owner actively complains, the server simply takes down the files and no legal issue is raised (meanwhile the copyrighted content likely pops up again within a matter of days).

    Wired’s recent YouTube article, YouTube vs. Boob Tube, does a good job of summarizing the important bits of YouTube culture for those who may have missed it up until this point.  It begins as any good discussion of YouTube, by rattling off a large array of videos which are simply to be seen so that you can understand the fundamental concepts underlying YouTube

    It continues to assert more of YouTube’s grassroots, consumer-generated flair, slowly beginning to delve into broader sociological concepts (writer Bob Garfield decides to bestow upon YouTube the moniker “monkey vision,” which is a name so outrageously “pompous social magazine writer attempting to coin the next phrase” that it is sure to be forgotten soon.

    But beyond that, it does address some key issues with YouTube, such as its future.  How can, for instance, YouTube truly keep afloat when all it has is ad revenue and the majority of its hits go through embedded content, not directly off of the site where the ads are?

    Regardless, Hollywood types are shaking in their boots, and for good reason.  As YouTube takes off, not only do they lose their stranglehold on the media market—as the article points out just a few years ago completely dominated by Hollywood—they lose ad revenue, and to top it all off, many of the videos on YouTube actually infringe upon content that they are creating.

    The article, in general, seems to depict a two-pronged future for media.  It raises two important questions: can YouTube capitalize on its success, or will it turn out to be a “useless” humanitarian endeavor?  The second question is, literally and oddly enough, “will we ever be rid of Regis Philbin?”

    Regardless, the future of YouTube still looks promising.  We are still in the midst of a consumer culture-driven wave, and as the technology gets cheaper and cheaper, there is no sign of end.