Luis VillaRamblings on software, law, and the spaces in between.

It doesn’t start out that way, but this is an excellent explanation of why video blogging may get interesting at some point, and how if it does, it will get into serious conflict with copyright law. Watching this made an old friend write me and tell me ‘for the first time, Lessig makes sense to me’- i.e., it finally made him understand Lessig’s point from Free Culture that centralized copyright control can actually damage culture.

Unstructured late night reply to my friend follows- read with a grain of salt since I didn’t originally write it for publication and pretty much just copied and pasted this from the email:

him:

> i guess the big question is: is there a way we can use copyright to
> continue to protect artists and writers from pirating but to allow for
> fair use clipping to create original free content?

me:

There are a couple things one could do:

• significantly strengthen the presumption that non-commercial use = fair use. There is a good argument to be made that most Americans think that non-commercial copyright infringement is already legal, and everyone does it, so it probably should be legal. You protect artists here by still vigorously going after the ‘industrial’ pirates- people who upload an entire movie to youtube, even if it is non-commercial in the sense that they don’t make money, are different from those who sample from the same movie (like Julian Sanchez here) or who share the entire movie merely with a couple friends. The current law more or less recognizes this, but only on a case by case basis. The resulting uncertainty means that when you get threatened by a copyright owner, you cower. If the presumption were strengthened (presumably by statute) then people would feel more comfortable doing things like this video. (See Jessica Litman’s Digital Copyright for a better elaboration of this argument.)
• significantly strengthen the penalties for bringing a fraudulent copyright violation case. Example: A former co-worker from Harvard is teaching copyright law this semester at Brooklyn Law School. She copied a segment of the NFL’s copyright statement from the super bowl to youtube to use in class: http://www.youtube.com/watch?v=a4uC2H10uIo Almost textbook fair use: educational, non-commercial, an insignificant fragment of the overall work, and it clearly does not reduce demand for the Super Bowl. So far the NFL has had it taken down twice. Because she is a copyright lawyer, it is still up, but for anyone else without deep pockets, it would have gone down and stayed down. This is borderline outrageous- any lawyer for the NFL who recommended it be taken down should be disbarred for not knowing copyright law. If you strengthened the penalties against the NFL for
  making such an outrageous claim, there might be fewer of such claims. (There are similar penalties on the other side- if you knowingly violate a patent, as opposed to accidentally violating, the damages are tripled. If the NFL had to pay triple the other side’s legal fees in a case like this one, there would be a lot less to do.)

Anyway, I strongly recommend reading Lessig’s Free Culture- it gets into a lot of this, and a lot better ecommendations, in great detail, with more historical background and stuff. Well worth a read. And available for free online if you can sit that long in front of a monitor ;)