Friday, May 29, 2009

DMCA, Derivative works, Piracy, Barack Obama

At the intersection of these four topics, we have...

Normally, I'd post a concise but comprehensive post about an issue as important and complex as intellectual property laws in the digital age. I can't exactly do that here though because the issues are deep inside a grey area. I'd need a thousand pages and five experts to touch on every point.

On the one hand
it costs money to produce high-quality creative stuff. If the fair use and derivative works laws make it legal to essentially pirate works, people can't afford to create them. Production companies need copyright protections or else we end up with the braindead ramblings that inundate YouTube as our only form of entertainment.

On the other hand laws that aren't black-and-white force court interpretation. This means the common derivative artist will need to have more legal savvy and money than the mammoth multinational that comes after him. In what world is that the likely?

The only clear part of this whole debate is that the laws are outdated. If nothing else, they need to very clearly define the parameters of a protected derivative work. We were able to clear up fair use, first-sale, and genericized trademarks. Hopefully, we can clear up the derivative work question as well.

As with anything, the first step is for individuals to understand the current laws so that they know when they're in the right. In theory, the rest will be solved by court precedents and people like you and I demanding revisions to the statutes.
So, instead of trying to write a complete manifesto sans Juris Doctorate, I'll use the John McCain Gets BarackRoll'd video to demonstrate where we're at with - and possibly educate about - derivative works. Sony has been all over YouTube demanding the removal of the audio portion of this file (hence why I'm linking the one from Funny Or Die)...



Things to consider about this video:
Disclaimer: Neither Ed nor Erd are attorneys. These is Erd's interpretations of the laws. Call a lawyer if you're facing legal trouble.
  • Originality: The audio file for this "remix"-class derivative work is merely the superposition of Obama's words over the original, copyrighted work. Thus, it is on shaky IP ground to begin with. But while the audio file is the crux of the humor in the original BarackRoll video (no audio), this new one involves extremely good chroma keying (watch the reflection on the stage behind McCain) and the intermixing of video from McCain's speeches such that the joke is now an annoyed McCain being forced to endure a BarackRoll of epic proportions.
  • Potentially satire: Though its real purpose is internet humor, one could view this video as political satire - it shows Obama saying he's "Never gonna make you cry," "Never gonna tell a lie," and that "You wouldn't get this from any other guy." This is all met with thunderous applause and chanting from McCain's supporters. Really, the video could be a statement of "Vote for Obama!" or even the less obvious "Obama's celebrity status has reached ridiculous proportions... what the fuck is going on?"
  • Purpose and character: Unless you actually buy the above rationale, this derivative work is not transformative (Wikipedia has two articles on the topic). However, it is released for free, so the authors (Hugh Matkin and Alastair Corrigall) are not seeking to make a profit off of Sony's music.
  • Amount and substantiality: If somebody wants to hear "Never Gonna Give You Up," this video is not the place. Of the 3-minute 33-second song, only 1 minute and 26 seconds are used - about 40%. More importantly, all but the first few seconds of this sample are corrupted with outside audio (Obama's voice and chanting). In short...
  • Effect upon work's value: It doesn't infringe on Sony's ability to make a profit off of the song. If anything, it's free advertising. Do you think anyone from our generation would know who Rick Astley was if it wasn't for the RickRoll and all its kin?
  • Artist's consent: Though Sony owns the copyright to his song, it is interesting to note that Rick Astley likes the BarackRoll and the grassroots creativity of the Internet. He even likes the rudimentary RickRoll.
Isn't it about time that Google-YouTube takes a stand in favor of their content creators? Isn't it about time Sony, Universal Music Group, and other companies stop abusing the DMCA and IP law to suppress artists? Isn't it about time we update copyright laws so that companies can't use the domineering "We have lawyers, you don't" tactic to subvert the rights of creative individuals? I'm usually pretty ambiguous or even in favor of the company trying to protect their works, but this situation is pretty one-sided for Matkin and Corrigall as far as I can tell.

Does Sony being wrong matter? Not a bit. YouTube gets hit with the DMCA fist of fury every day. They're unlikely to restore the audio even if hmatkin made a convincing argument that's he's not infringing - doing so runs the risk of them getting sued over something silly. Even if YouTube won, it costs money and time to defend themselves. Since hmatkin doesn't have monetary damages (the video is free to watch) he'd have a hard time suing Sony. His only remedy is to bait them by posting the video on a site\server -ideally outside the jurisdiction of the DMCA - that won't bow to cease and desists (or his own server), hope Sony sues him, and defend himself in court.

In essence, rather than Sony (the "injured" party) proving that hmatkin is infringing their rights, hmatkin has to prove he's not infringing theirs. This is the clusterfuck of DMCA in the digital age: You don't have to prove I punched you, I have to prove I didn't. Guilty until proven innocent (in a spaghetti-strand-through-third-party-hosts-too-pussy-to-defend-their-users kind of way).

The solution? The law needs to not hold YouTube liable for the content their users post. It didn't used to, but thanks to the DMCA, it does. If I build a road for public use and you use that road to traffic drugs, am I guilty of drug trafficking? Is the CyberCafe guilty for the libel and threats you posted online while you were there? If you burn a bootleg, am I guilty just because you did it when you borrowed my computer? YouTube provides infrastructure for people to upload stuff. It's not their job to monitor how people use it. The DMCA requires that YouTube remove infringing material - which works in theory except that the scales aren't even. YouTube has no legal obligation to its users, but does have one to Sony. The result is that any company with a few lawyers can bully even YouTubers who are legally using their content.

The "big picture" issue here is that the Internet is being treated like book publishing or TV - lots of channels, each with their own Standards & Practices team reviewing things before they air. It's not: it's global, it's hosted by public and private organizations and individuals, it's free-to-use and ubiquitous, there is no central authority, and on places like YouTube or Blogger, it's direct-to-publication. The Internet is unlike anything we've seen before... it'd be nice if our legislature understood that.

Anyway... thank the gods of the Internet for making it virtually impossible to put a tourniquet on the spread of these videos. In the time it took you to read this post, three more web sites added "John McCain gets BarackRoll'd" to their library and five people have downloaded it from somewhere and uploaded it to their own YouTube\DailyMotion\Vimeo\etc. accounts. Until the AT&T packet sniffer precedents are set, we're not completely in the shitter.

I'll let Barack Obama have the last word (Series of Disappointments = hmatkin = Hugh Matkin and maybe Alastair Corrigall)


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