Last month I spoke at BlogNashville, a conclave of folks who got together to discuss the state of blogging and the issues confronting emerging media such as podcasting and videoblogging.
At Dan Gillmor's session on grassroots media, I spouted off a bit (as I'm prone to do at these things) about fair use in the digital age. If the thousands of works that Ourmedia's 21,000 members have uploaded in the past two months are any indication, a majority of grassroots video and audio can be published and shared and remixed (if the owner allows it) by using Creative Commons licenses assigned by the creator to each work.
But there's another category of works that fall into the grey zone of fair use. And I said that it's important that we assert our fair use rights in this emerging landscape and not let the entertainment companies and their allies on Capitol Hill clamp down on this astonishing grassroots mediasphere before it has a chance to flourish.
A couple of sessions later, Gigi Sohn, the executive director of PublicKnowledge (and one of the heroes of my book), moderated a session about Copyright and the New World of Syndication. (The mp3 is here.
Gigi took the same position as Larry Lessig does -- that fair use is the right to hire a lawyer after you get sued.
That is perhaps true, given that fair use is not nearly as robust as many of us would prefer, and far less a bulwark against lawsuits than the public generally believes.
But the point I make about fair use in my book is far different: Use it or lose it.
So, what's your view on this matter, Copyfight readers?
I don't want to engage in a legal skirmish here, particularly because I'll be at a layman's disadvantage. But I'd love to hear some thoughts about high-level strategies for bulking up our fair use or digital rights as millions of us will want to borrow from and comment on our visual culture, just as 10 million blogs already do in the text world.
Here's some food for thought:
- A few minutes ago I just posted a set of fair use guidelines written for Ourmedia, on a pro bono basis (bless you!), by the remarkable IP team at Fenwick-West in San Francisco. They've reduced a monstrously complex thicket of laws into some easy-to-understand rules for the digital age (albeit rules with a lot of greys at the edges).
- Since Ourmedia launched in March, with the offer of providing free storage and bandwidth to anyone, anywhere, who wants to post works of personal media, we're naturally been dealing with issues of copyright infringement. You can find plenty of muddy greys on the site, as well as works we felt went over the line. (Not sure what the entertainment companies think about all this, but they should be pleased; we're giving our members a crash course in copyright law.)
- In my latest entry from the book on Darknet.com, I excerpt a section about a fellow who spent $700 to create a DVD to annotate his favorite TV show. I found it fascinating that Siva Vaidhyanathan and Ernest Miller gave different views of fair use for such visual works. I suspect both are correct, though they chose different parts of the legal tradition to emphasize.
- This morning I came across this video by Josh Wolf (see the 21MB QuickTime movie). He took a music video by a band and inserted news clips of people protesting U.S. foreign policy. Infringement? Creative reuse? Or muddy grey?