Further Reflections on YouTube vs. RIAA

University of Chicago law professor Randy Picker was nice enough to pass along a link to what he has written - from a legal perspective - about the potential threat which the RIAA may pose to those folks who want to post lip-sync or karaoke songvids on YouTube:

For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public's knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube.... this is how we pay for music in the real world: different uses, different prices, and until we change the law and come up with a better way to pay for music, you should assume that the music industry is going to show up one day and knock on YouTube's door.

I don't pretend to be a lawyer so my views on the law should be taken with a grain of salt. I am pretty sure though that Picker is correct that the RIAA is almost certainly well within its legal rights to take action to shut down this use of its music via YouTube.

That said, I feel that we should be paying closer attention to that "persistent gap between actual law and the public's knowledge of that law and frequently, perceptions of fairness." True, ignorance of the law is no excuse but a democratic state should always be concerned if the gap between the law and the public's perception of fairness grows too great. (And I would suggest that gap is growing hourly at the present moment).

The current law regarding media use was written at a time when the freedom of the press was exercised primarily by those who could afford to own presses and was updated at a time when the key stakeholders at the table were thought to be broadcasters and other large media interests. It was never intended to function in a world where an ever-expanding number of amateur media makers are producing and circulating their work to a public. I would argue that our current law recognizes the rights of professionals fairly well - though clearly even here, it is having trouble keeping up during a moment of media in transition. As an academic, I know how much of a written text I can quote within scholarly commentary and fall within a Fair Use defense; I also have a pretty good sense as a journalist what constitutes legitimate quotation. Yet, as we turn to fans and bloggers and others within this expanding participatory culture, the lines become much less clear.

It is pretty clear that whatever systems of clearance that got set up to deal with commercial musicians and radio stations or even, to use Picker's example, singing waiters is not going to be adequate to deal with those high school guys in China who appeared in one of the more famous example of lip syncing videos. For one thing, the pricing for public performances is almost certainly beyond their capacity to pay and so they are going to be permanently locked out of being able to respond to a central element of their cultural environment. For another, it's hard to imagine a system which could accommodate requests every time one of us wanted to pre-register to perform "Happy Birthday", say, for our 5 year old's birthday party - as I am sure that the law clearly states we should do. Again, we are producing media on a scale rather different from even what was imagined in the most recent revisions of the copyright act. And for a third, did I mention those guys were from China and operate under a totally different copyright regime?

That's where we get to the second stage of this problem: a system of distribution like YouTube pushes grassroots creative expression to a level of visibility well beyond that received by any previous form of folk culture. The media industries could tolerate us lip syncing their songs at the local Lions Club meeting or as part of the school talent show because it did not reach a large enough public to demand their attention and concern. Enforcement would have been difficult and the damages caused by those public performances would have been so minimal that nobody would have taken the time to go after them. True, school drama clubs used to pay some small amount in licensing fees to the rights holders of plays like Harvey and Guys and Dolls, but there were many many everyday performances, even public performances, which would have been off the radar of the commercial rights holders.

But the same performance posted to YouTube can be seen by millions of people and in some well publicized cases, has led to commercial performances on television, even contracts for use in television advertising. The reach of YouTube breaks down the line between professional and amateur performance in a way which is going to force the recording industry to respond.

And that's the paradox of the present moment: you have amateurs reaching mass audiences without the means (or the legal representation) held by the media companies which previously were the only ones who could reach this scale of public.

It's not sufficient to simply tell us "this is the law." We need to work together to try to change the law into something that makes sense in relation to this emerging and expanding participatory culture.

That said, my key point in the original post was not that the RIAA would be exceeding its legal rights in going after such videos. Picker is correct to suggest that this would be a logical and clear cut extension of long-standing legal practice. Rather, my point was that attacking these amateurs would be going against the recording industry's own public and economic interests. Here I am thinking about a statement which the anthropologist and industry consultant Grant McCracken makes in his book, Plentitude:

Corporations will allow the public to participate in the construction and representation of its creations or they will, eventually, compromise the commercial value of their properties. The new consumer will help create value or they will refuse it....Corporations have a right to keep copyright but they have an interest in releasing it. The economics of scarcity may dictate the first. The economics of plentitude dictate the second.

Right now, the recording industry, more than any other entertainment sector, wants to fall back on an assertion of its legal claims over intellectual property -- trying to throw every legal and technological obstacle it can toss into the path of change. In doing so, they simply further erode public support and respect for their industry. They probably have the legal rights to do it: I wish they had the economic and cultural sense not to do so.

Thanks, Randy, for a very interesting post. I don't mean to be picking on what you wrote. I essentially agree with you on the legal argument but I hate to leave the entire future of our culture in the hands of lawyers (no personal insult intended). We have to fight a two front battle here: help to rewrite copyright law to respect the new realities of the media landscape and help to convince media companies that it is in their best interest to build a more collaborative relationship with their consumers.

YouTube vs. The RIAA

This is another in a series of posts highlighting trends which threaten our rights to participate in our culture. According to a report published in the Boston Phoenix this week, the Recording Industry Association of America (RIAA) may soon take aim at the amateur lip syncing and Karaoke videos which circulate on YouTube. Spokespeople from the RIAA, which has never been slow to assert the broadest possible claims on intellectual property, have so far not confirmed the claims that they will be using their power to force YouTube to take down such videos.

Participatory Culture's Most Powerful Distribution System

YouTube represents perhaps the most powerful distribution channel so far for amateur media content. More than 6 million visitors watch a total of 40 million clips per day and upload another 50,000 more, according to the Phoenix. Some of that traffic is no doubt generated by content grabbed from commercial media -- including a fair number of commercials which are virally circulated, music videos and segments from late night comedy shows, strange clips from reality television, and the like. But a good deal of the content is user generated and this content is generating wide interest.

Many people will have seen the footage of the guy who went a little extreme with his Christmas tree lights last year or, in regards to this current issue, some of the videos of pasty-faced and overweight people singing off key versions of their favorite pop songs -- often with demonstrably limited comprehension of the lyrics. Many of us had argued that earlier file-sharing services such as Napster provided an infrastructure for garage bands and the like to get their music into broader circulation but there, the illegal content swamped the legal and made it hard to support this case. With YouTube, there is no question that some of the most interesting content comes from grassroots creators. Via YouTube, what were once home movies are finding a public -- some coming to appreciate real creativity, some there to gawk.

Mixed Signals from Media Industries

The various media industries are struggling to figure out how to manage this service, which clearly yields them benefits in terms of increased audience awareness and interest in their content. The early circulation of a particular Saturday Night Live sketch ("Lazy Sunday") has helped to put YouTube on the map and has helped to increase ratings for the series. There was something funny on Saturday Night Live -- who knew? Many of us saw Stephen Colbert's appearance at the Washington Press Club dinner via YouTube. I suspect it was the only C-Span content a lot of young people had watched in a long time. In both cases, the rights holders -- NBC and C-Span respectively -- had the content removed.

More recently, a friend sent me to the site to see previews for some of the forthcoming Fall television series but by the time I got there, in some cases, the networks had them yanked. It's hard to imagine anything more bone-headed than to shut down grassroots efforts to sell your own products -- whatever else you think about the intellectual property issues in circulating actual program segments.

A few companies -- most notably the MTV Networks (full disclosure -- a sponsor of C3) -- have taken a more enlightened policy towards YouTube -- no doubt because a sizable chunk of young males spend more time these days surfing the web than zapping across cable. Taking advantage of YouTube as a source of viral marketing means letting go some of the control that the networks believe they have over what happens to their content: for some of the broadcasters, this loss of control has been hard to accept (and is complicated in the case of cable networks by expectations of their affiliates that they will be the exclusive source for program content).

We're Singing Their Songs!

Now, the RIAA, the most hated name in the entertainment industry, may be entering this picture and if history is any indication, they are likely to play rough. But they need to pull back and think more carefully about whether this kind of scorched earth policy is really the best approach to the challenges they are confronting.

After all, if their performing artists can't compete with some of the off-key, language-impaired performances in these videos, then nothing else they do is going to get any of us to buy their records anyway. It seems far more likely that these videos will drive us towards the professional performances, reminding us of songs we may have otherwise forgotten.

The RIAA is acting on the assumption that these amateur performances may be depreciating the value of their intellectual property. But these fans appreciate the original music in a double sense -- first, they want to show the world how much they like it and second, they increase the potential value of the music by heightening public awareness. Their emotional investments in the songs yield potential dividends for the rights holders. Media industries usually benefit when their content becomes a living part of our culture -- if nothing else, it extends the shelf life.

But then, technically, we are supposed to pay the record industry money every time we sing Happy Birthday to someone so it is no surprise that they take a dim view on amateurs playing rough with their precious lyrics or mouthing off to their songs.

As journalism professor John Battelle posts in his blog about this issue, "Good f'ing lord, RIAA. Wake up. This is how we use music in the real world. Get over yourselves."

Amen, Brother Battelle, Amen.

Thanks to Margaret Weigel for alerting me about this issue.

MySpace and the Participation Gap

Everyone seems to agree that we live in a era of participatory culture. Few people agree on what should be the terms of participation. From time to time, I will direct attention towards challenges and obstacles to the public's right to participate. More often than not, these debates center on young people and their access to media. Young people are the shock troops in the digital revolution -- early adopters and adapters of technology in their constant search for a room of their own in a culture where adults get to define all of the rules.

DOPA

The latest battle in the ongoing struggle over young people's access to and participation within digital cultures is HR 5319, better known as the Deleting Predators On-Line Act (or Dopa). Essentially, this proposed legislation would require any school or library which receives federal funds to ban a range of social networking software, including most notably MySpace, but also potentially including Live Journal and blogging software. This legislation has emerged in response to media coverage of a range of social problems which critics associate with MySpace, including concerns about the threat posed to young people by adults on the prowl for underage victims.

My former student, danah boyd, has been researching MySpace and the other social network sites. She's become a go-to gal with the media on MySpace issues and a sharp critic of the proposed legislation. Recently, the two of us got together for a joint interview about DOPA and MySpace more generally.

My own concerns about DOPA center around two key factors:

The Participation Gap

First, if passed, the legislation would further exaggerate the gaps in social experiences between kids who have a high degree of access to new media technologies at home and those who do not. Throughout the 1990s, there was a great deal of discussion about the so-called Digital Divide which was understood as a gap in access to new media technologies. Concerted efforts were made by those who saw digital resources as valuable to wire every classroom in America and to get networked computers into public libraries. Yet, as the dust has settled, we are realizing that the problem is only partially technical. There's a huge gap between what you can do when you've got unlimited access to broadband in your home and what you can do when your only access is through the public library, where there are often time limits on how long you can work, when there are already federally mandated filters blocking access to certain sites, when there are limits on your ability to store and upload material, and so forth. We call this the participation gap and if passed, this new law will only leave lower income Americans further behind in their ability to participate in the defining experiences of their generation.

The Worth of Networks

All of this would matter less if it wasn't for the second issue -- the ability to operate within social networks is a core skill which we should be cultivating in all young Americans. Increasingly, our professional lives are shaped by large-scale collaborations within knowledge communities. Yet, schools tend to be invested in training autonomous learners. Students, by and large, are acquiring networking skills on their own, outside school hours, through their involvement with MySpace or fan discussion lists or game guilds. In a hunting-based society, kids played with bows and arrows. In a networked society, they play with information and online communities.

Around the country, some teachers are already incorporating social network sites and blogs into their teaching practices. They are using them to connect kids with others who live in very different circumstances or who have specific expertise relevant to a particular assignment. They are using them to generate data which can be used in math or social studies classes.

But if this law is passed, it will make it much harder for these teachers to do their job in preparing students for their future digital lives. True, the law allows exemptions for recognized educational purposes but it creates some strong barriers for teachers to overcome before they can pursue such projects. Having dignified the fear that MySpace is a "Big Bad Evil" through federal legislation, they will face increased public pressure not to take Little Mary or Johnny into their horrible place.

Are We Really Protecting Kids Here?

To be sure, there are some real risks involved in letting young people enter into social networks without some degree of adult guidance -- issues of privacy and cyberbullying for example. And yes, there are some predators there -- though right now, these sites are being heavily policed. We do encourage parents and teachers to discuss responsible and appropriate ways of interacting in virtual worlds and give periodic reminders that while the world may be virtual, the people they are interacting with are real people with real feelings. We do not advocate parents spying on their kids; we do advocate adults communicating with their children about their values, expectations, and norms as they relate to these emerging digital environments.

You would think that if MySpace were as dangerous as critics claim, there would be a stronger effort made to educate young people about the safe and responsible use of social network software, much as earlier generations of educators taught kids what to do if a stranger calls on the phone when their parents are not there. Instead, the law would leave kids to confront these challenges on their own, outside of adult supervision, and off of school grounds.

Our position is in favor of education and against regulation.

For a short interview segment with me talking about these issues, see Beet TV.