How it works: Understanding Copyright Law in the New Creative Economy

Re:create
Coalition’s How It Works: Understanding Copyright Law in the New Creative
Economy
Alex Feerst,
Corporate Counsel, Medium: Medium strives to present a range of options for
community-driven and commercial and in-between writing. Porous: some writers
have found ways into pro and semi-pro careers.
Katie Oyama, Sr.
Policy Counsel, Google: Showed a video about the Missouri Star Quilting Co., whose success drives a whole town’s and
it’s all because of YouTube.  YT allows
content creators to experiment at lower costs; allows time-shifting by
comedians (e.g., John Oliver); opens global markets. Psy’s Gagnam Style was the
first billion-view video, and had enormous effect on an entire genre: looking
at metrics, K-Pop moved outside Korea in a big way; increased ability to
interact w/fans.
Becky “Boop” Prince, YouTube CeWEBrity, Internet news analyst:
Started out making gameplay videos, got interested in ©, now makes a living
creating news.  Diversity of creative
voices/creator can be central v. network TV; global audiences allow you to prove
your worth w/o a gatekeeper.
Betsy Rosenblatt,
Legal Director, Organization for Transformative Works: 700,000 registered users on AO3, 150
million page views/week, all through volunteers.  Fandom brings people together who wouldn’t
have found each other; underrepresented groups in particular. Find audience of
those who love what they love; gift economy isn’t about making a living, but
about making yourself.
Prince: She never
thought she’d have an impact like this, but found people were watching to help
themselves feel better.
Rosenblatt: Money
isn’t the whole story. Online creativity can/does lead to financial success,
but also creativity, selfhood even without commercial success—we need all the
options.
Feerst: Low-cost
production means that content can go viral; open letter to CEO on Medium went
viral and the company raised people’s salaries—the effects are unpredictable.
Oyama: secondary
markets: people can gain audience, which sometimes becomes part of the overall
business model; YouTubers getting book deals.
Rosenblatt: we collected powerful stories from around the
world
; people told us that
making transformative fanworks literally saved their lives.  People talked about depression, about not
knowing others shared their sexual identities, about how no one was
representing them in major media. One wrote stories about the X-Men and being
in a wheelchair and found others to talk about her experiences—connecting via
connection to a superhero in that situation.
Prince: discussed an
instance in which a viewer imagined having her and other vloggers as friends in
high school—he felt accepted with us.
Feerst: “Why I don’t talk to white people about
race”—
opened up a far larger
discussion online though started more personal.
Oyama: a way to make
connections to others’ humanity.
Feerst: Running your
own website is difficult.  Instead, you
can sit inside our network for distribution via Twitter etc. Value of creating
within network even fro new media launches—Bill Simmons from ESPN is building
on Grantland model—allows interaction between market sectors, finding new
voices.
Oyama: Disney used
YouTube well to reestablish Frozen, which topped box office for longer than
usual.  90% of Content ID matches now
stay up; ½ of music revenue on YT comes from UGC.
Rosenblatt: The OTW
can’t build Content ID, but fanworks often drive demand. Users are often
creators, and boost/build markets for ©. That means we need a system that
encourages people to build on what came before.
Prince: Fair use is
really important: reaction channels are a new phenomenon, polarizing—sometimes
it may be infringing but often it’s critical commentary.  She’s had a quote from Buzzfeed generate a
Content ID block even though she was talking over the clip and it was a short
clip for commentary. When your voice can be blocked, fair use is a huge issue.
Content ID is only available to those with a lot of content—it favors large
companies over small.
Oyama: On balance,
US system is remarkable in how it lets creators thrive.  New economic sectors based on fair use are
growing.  Google search snippets depend
on fair use.  Safe harbors are also core
protections for free speech; YT has 400 hours/minute uploaded and couldn’t work
otherwise.  §512 also allows small
companies to grow; this is under threat outside the US.
Feerst: We’d all
like our name attached to our modest original contributions, but anger may lead
people to use DMCA when © isn’t the problem. © is a powerful regime for
regulating all content. When people feel plagiarized, they may turn to ©.  Quotations shouldn’t lead to DMCA wars but
they do in some cases.  The DMCA helps
sites, but only by rolling back ©’s overcoverage in which everything, even
shopping lists, is covered by default. 
But the DMCA also means we’re incentivized to take things down even when
the claims are weak. Counternotice requires people to surrender personal info
and is rarely used.  A lot of folks who
don’t like a picture or think they were plagiarized use takedowns.  Copyright and 1A are fundamentally in
tension. We often see DMCA used as a frictionless means to get takedowns, as
when someone paraphrases a text exchange they had and the other person is
unhappy. That’s copyright misuse; the incentives of © are not involved.

Rosenblatt: Fair use is designed to protect the 1A. The OTW believes we can
screen notices for legitimacy and not just automatically take stuff down. The
people who come to us often feel voiceless; they fear counternotice in a system
they already don’t trust.
Prince: Privacy is
important. Counternotice requires revealing name/location. Someone figured out
her location and sent a false takedown using a username referencing the Boston
Bombing: clearly threatening. 
Counternotice required revealing personal info.  Result: Chilling effect and
self-censorship.  Multiple strikes filed
at once can be particularly damaging, because the DMCA requires repeat
offenders to be punished; your account can be shut down before you can respond.
Josh Lamel,
Re:create director: We’ve heard that over 50% of Amazon DMCA notices are by
competitors attempting to keep competing books from being sold—being off for 48
hours can kill a book’s rankings, which are key to its ability to be noticed.
[This is important and not well understood yet in the policy space: the
profiles of DMCA notices are very different across services. YT receives
different notices from Google Web Search, which is different from Google Image
Search, which is different from Wikipedia, which is different from WordPress.]
Prince: Same thing
happens on YT for ranking.  Can be weeks
you’re gone; if you’re not growing you’re not picked up by the algorithm.
Oyama: we try to
facilitate due process. Big US © owners are generally responsible but activists
in other countries report they face abuse. In a Content ID dispute, about ½ the
time the sender will release the claim. Sometimes putting people together can
be effective.
Lamel: What would
notice and staydown mean?
Oyama: worst thing
for a startup is to change the rules. Government obligation doesn’t work in
many circumstances. It’s technically impossible, and doesn’t account for fair
use or licensing. SOPA died in part for these concerns.  There are some hosted platforms that do
functionally have staydown, with Content ID, but that doesn’t work for search
where we don’t have fingerprints, for startups, for nonprofits.
Rosenblatt: “notice
and staydown” is a hollow phrase, too broad and too narrow. They mean mandatory
monitoring and filtering. Piracy is bad, but once you require monitoring and
filtering you shut down small platforms. We couldn’t do it, especially not in a
way that accounted for fair use. 
Collateral damage is fair use—using a sledgehammer to remove a barnacle.
Prince: Staydown
doesn’t work.  I downgraded the Buzzfeed
video and messed with the audio until it went up.  Evasion means it doesn’t work, and also
chills speech; many people worry about getting blocked.
Feerst: Saying “build
a machine to figure out fair use” isn’t something you can do even with $60
million.  Staydown requirements would
skew towards established incumbents.  We
have disappointments with the DMCA but it provides a structure we can use.  The problem is how people behave when
statutory damages etc. feed up into creators’ behavior, such as fear of using a
counternotice.
Oyama: 512 is most critical
for startups that haven’t been invented yet (and aren’t here to defend
themselves).
Rosenblatt: Think
about protecting people’s ability to express themselves. Who gets to speak?
Those who already have a voice or those who don’t?
Prince: need
clarity, especially globally—creators are in different countries.
Q: How do DMCA wars
on YT start?
Prince: Revenue
comes from being recommended on related videos, etc.  DMCA claim stops competitor from appearing on
search.  Separately, Content ID means
people can claim your video and get the $ for it. Music owner may claim 100% of
revenue based on 30 seconds in hour long video. 
Rosenblatt:
Emotional incentive too, or sometimes just machines. Often our DMCA requests
(to AO3) come from matching titles.
Q: Harsher laws in
other countries. How can global companies protect creators against those
regimes?
Oyama: Other
countries do have fair dealing; we are seeing startups and entrepreneurs
explain that they need safe harbors as well. Should also be very focused on
licensing regimes. We have resources to have teams for each country, but music
and film systems are extremely fragmented. We’ve given $5 billion to music from
YT, but it has taken huge time and effort.

Feerst: We operate
in the US, though we’re online and have goals to expand. One reason platforms
largely grew up in the US is the DMCA. 
Largely we are less able to protect users overseas. Small companies with
no expansion plans overseas may roll the dice, but companies that hope to grow
have to make choices.

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