Tag: video

Public Knowledge Responds to Infringement Claim in Ajit Pai Video

Well, this is interesting.  Ordinarily, Public Knowledge is an organization that sows a lot of confusion—and sometimes outright falsehoods—about copyright law.  As a rule, I group them among the “digital rights” activists who tend to promote their opinion of what the fair use doctrine should be rather than a more realistic description of what it is.  So, it’s interesting that in response to allegations of copyright infringement against people they don’t like, the organization has produced a fairly sober and reasonable analysis of the fair use defense.  For the record, I’m no fan of the video in question either.

After FCC Chairman Ajit Pai reversed the 2015 Open Internet Order, a video featuring Pai, apparently produced  by the Daily Caller, went viral. It shows Pai demonstrating various things people will still be able to do after the hugely unpopular reversal of what is generally called “net neutrality.”  As readers know, I’ve tried to cut through some of the rhetoric on the neutrality issue without fully defending Pai, or certainly the telcos; but I also think the video was a pretty dumb PR move.  Its content may be factual, but its tone and style were begging for ridicule; its association with the odious Daily Caller makes it fatally dismissible; and its use of about ten seconds of the song “Harlem Shake” drew a DMCA takedown and threat of litigation by artist DJ Baauer.

Faced with the dichotomy of hating both Pai’s policy and copyright law, Public Knowledge uncharacteristically published a fairly rational explanation, written by Meredith Filak Rose, of the fair use doctrine along with an analysis of the use of “Harlem Shake” in this video.  Her assessment predicts that the video makes a fair use of the song, though not without sprinkling a bit of anti-copyright messaging along the way.

Rose does a good job of explaining the legal meaning of “parody,” which is one of the more widely misunderstood, colloquial terms invoked to assert a fair use.  I agree with her that the use of “Harlem Shake” in the video does not meet the standard of parody and am glad to see even an anti-copyright organization make an effort to clarify this point.  But from there, I think her fair use analysis is a bit all over the place, straining to make a case for the kind of use Pai and colleagues made, while clearly hating the video itself.

I’ll dispense with the fairly simple analysis under the second fair use factor, which generally considers whether the original work is expressive or factual in nature. Use of the former tends to weigh against a finding of fair use, while use of the latter tends to weigh toward a finding of fair use. Clearly “Harlem Shake” is expressive, and so Rose is correct to expect that this disfavors a finding of fair use under this prong of the four-factor test.

Under the first factor analysis, I agree with Rose that the use of “Harlem Shake”  is not parodic and that it is also non-commercial; but I disagree when she concludes that it is “at least mildly transformative,” thus favoring a finding of fair use. In fact, it is contradictory to conclude that the use of the song is not parody but is transformative. Because this still begs the question as to what has been transformed.

Originally, transformativeness described the creation of a truly new expression, which could not possibly exist without making use of the exact work in dispute. In the video, Pai concludes his list of “post neutrality” activities by saying “You can still do the ‘Harlem Shake’,” and then he dances to the track (and yeah, it’s cringy) with staff members of the Daily Caller.

This use is no more transformative than if the track were synched to the introduction of a promo video made by Pfizer. The use does not produce a new work that directly parodies, comments upon, criticizes, or builds upon the original song itself. In fact, in a subtle way, Pai is telling people, “Don’t worry, you can still randomly infringe various copyrighted works after I reverse the 2015 Order.”  (By the way, transformativeness is a principle that has indeed been applied rather schizophrenically in the courts, but it is organizations like Public Knowledge that continue to promote ever-broadening interpretations of the term.)

The intended communication in the Pai video could have been made by using any number of pop songs. The purpose of the video as a whole was not a work of commentary upon art and culture but was instead a work of PR with the intent to promote a position on public policy. In a fair use assessment, this use should be seen as equivalent to precedent examples in which a creative work is used for general comment or satire (i.e. to comment upon something external to the original work), which are not typically held to be fair uses.

In this context, Rose errs when she considers whether or not it was necessary to use “Harlem Shake” per se in this video.  First she improperly places the question under the third factor—the “amount and substantiality of the use”— rather than the first.  Because the need (or not) to use a specific work underlies the purpose and character of the use, the question belongs under the first factor analysis.  Next, Rose rather bollixes up the principle in her effort to defend “meme culture” by confusing creative necessity with the much broader notion of personal taste.  She writes…

“But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect?”

Despite the anti-copyright crowd’s love of memes, the test under fair use as to whether a specific work is necessary to create an expression is not so broad as considering the whimsical taste of the user to make some generalized statement.  Under fair use, the resulting new work should, in some way, be unimaginable without making use of the protected work in dispute.  For instance, the seminal case (1994) in which 2 Live Crew parodied the song “Oh, Pretty Woman,” was one in which the new expression relies substantially on a cultural familiarity with the sounds copied from the original. It is understood that the new work is, in part, spoofing the spirit of the original song.

Rose’s reference to her screaming porg avatar errs as an example because she is in no way commenting upon the original photograph.  She’s simply wearing it like a button on a lapel to express her personal state of mind about the current political climate. If she used the same image in a blog post about the political climate, the photographer could take action, and she would almost certainly lose in a fair use defense.

Finally, while Rose’s explanation of the fourth factor is correct, part of her application with regard to the Pai video is odd.  The fourth factor considers the effect of the use on the potential market for the original work.  I certainly agree with her that nobody would ever consider the Pai video to be a substitute for listening to “Harlem Shake,” and I also agree that Pai’s use under this factor favors a finding of fair use.  But then, Rose meanders into other legal territory—namely, moral rights—when she writes, “There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song.”

Regardless of one’s opinion about moral rights for artists—Rose calls it dangerous—this consideration is not generally applied in a fair use analysis.  In fact it is essential to note that fair use will protect commentary upon a work, even if the commentary itself may harm the market value of the original work.  Correctly applied, the fourth factor only considers whether the new use may act as a substitute for the existing or potential market of the protected work, including a market that the original author may choose to exploit at some point in the future.  So, whether one buys into the argument that Pai’s use of “Harlem Shake” could create a negative association with the song, this is not legitimately a question under the fourth fair use factor.

On instinct, my prediction would be that that the Pai video would fail on the first and second factor analyses, prevail on the fourth factor, and could go either way on the third factor.  Although the video makes very limited use of “Harlem Shake,” the third factor considers whether the portion used represents the “heart of the work.”  One could imagine DJ Baauer making a case that the campy communication intended can only have worked by making use of the “heart” of the song such that it would be instantly recognizable in context.  This would disfavor a finding of fair use, if the use also failed under the first factor analysis.

One way or another, I don’t doubt the infringement claim associated with this particular video caused a bit of dissonance over at Public Knowledge.  And they should be commended for at least trying to discuss fair use as a nuanced principle, rather than the natural right of all netizens.  That said, I think they missed a few key distinctions in an effort to make clear they still really don’t like copyright.

Major Publishers Aim to Compete with TV

I remember telling a corporate client years ago that over time websites would begin to be treated as niche TV channels. Video communications would complement or replace written word content, and static websites would give way first to the opportunity and later to a demand to program new material on a regular basis.  Of course, I was trying to sell this client production services, but I did believe what I was saying would come to pass for many entities.  Today, video on the web has obviously expanded dramatically although it is still in its relative infancy.  For many viewers there is now little distinction between TV viewing and WebTV viewing, and the younger the audience, the more viewing tends to be web only and on devices other than television monitors.

In this recent article on PaidContent, Jeff Roberts reports on traditional print publications trying to figure out the formula for successful use of video on the web.  Highlighting the Wall Street Journal and Conde Nast, Roberts discusses the prospect of these major brands taking a bite out of the rich advertising pie that historically belongs solely to television. These publishers hope to attract sponsors on the strength of their brands and are investing in new video programs and hiring production professionals to grow marketshare in this space.

On the one hand, as prefaced, this is an inevitable development now that streaming video is high quality and digital production is an affordable add-on to a media organization like a magazine or newspaper.  In principle, an in-house staff of fewer than five people can produce a steady stream of solid video entertainment or news content.  And if the programming complements the brand, then viewership should increase and sponsors will follow.  The right mix, however, is essential, and I suspect it will be inherently harder for some producers than others to grow a whole new appendage into the world of television production.

It’s pretty easy to imagine a loyal reader of the WSJ becoming an equally loyal viewer of its videos. The WSJ provides a very specific type of content for a well-defined audience, one that likely considers consumption of its daily fare a necessity more than a luxury.  But the more video content can be described as optional entertainment/information, the more competition it has — not just with similar TV programming, but with EVERYTHING.

It is already well understood that competition for consumer attention is now geometric.  Any bit of content, from a multi-million-dollar TV series to a blog to a meme, vies for “eyeballs,” as the marketing wonks say, on a theoretically even playing field in a world of devices that are always on and connected. In short, because distribution of nearly everything is nearly everywhere, all media compete 24/7 for any prospective viewer’s still-limited time. And, of course, as volume increases, as more brands produce more content, the competition for viewer time increases as well. What has always been true will remain true — the most popular stuff will win, and the less popular stuff will disappear. That said, in the digital age, popularity can be very fleeting, and this is not how brands build relationships with customers.

In theory, content doesn’t have to be as popular on the web as it traditionally does on television.  1,000 legitimate customers of a sponsor are more valuable than 10,000 viewers who will never be customers, and in principle, branded, online entertainment helps sponsors connect with those legitimate customers and even occasionally sell to them via point-of-purchase opportunities. Done right, web-based entertainment eliminates some of the waste in traditional TV advertising, but this concept is also why a great deal of branded entertainment is occasionally just this side of an infomercial.  Harkening back to the earliest days of single-sponsor television shows, branded online video often features the sponsoring brand or products as a subject or character within the program itself. This can be a tough needle to thread in the hope of attracting an audience that wants to be entertained and not sold.  Hence, one of the most popular formats for branded online video is the news-magazine.  This format is cheap and fast to produce, and the non-fiction content easily suits certain sponsors without creating a disconnect for the viewer.  For instance, it feels perfectly natural for Nike to sponsor a news-magazine series profiling athletes.

With the right combination of elements, branded entertainment can be a perfect opportunity for some clever production people, the newly developed network, and the sponsors; but as the overall market divides, replicates, and expands, I suspect getting that combination right will be trickier simply because the market becomes so saturated that brands are competing for incrementally less available attention from their prospective customers.  At the same time, both viewing habits and the technologies used to consume media are dynamic; and these factors actually dictate the style, format, and length of programming.  If the viewer is on his couch at home, a full-length show might be what he wants to see, but if he’s killing 20 minutes during a lunch break, he might be more inclined to watch a bunch of short comedy sketches produced by College Humor. So, despite the ubiquitous nature of web distribution, brands still do have to consider where their customers are when investing in new video programming.  In this sense, it’s actually a lot more complicated than knowing the target demographic is in front of the TV at 8pm on Thursdays to watch a hit show.

Ultimately, it will still come down to the bottom line, meaning sales for sponsors.  Since the early 1990s, the level of experimentation, theory, and faith in pure smoke vis a vis the web has been consistently high, even as the theories and lingo continue to change. You can sell a term like “engagement” to a marketing guy, but not to CFOs, who decide how to spend the money.  Clicks and shares of entertainment media are not the same as sales and and really not the same as building a relationship between a brand and customers through entertainment.  Additionally, some research indicates that building brand loyalty in the Internet Generation is harder than  a pre-digital-age market.

Oddly enough, I actually pitched the idea of creating a “TV” arm to a magazine once, so I’m a believer in the overall concept.  But as high-end TV entertainment on the web becomes increasingly more common, as more producers jump into the game, more brands experiment, and YouTube tries its hand at acting like a traditional media company, I believe we’ll see a massive expansion of production followed by a necessary contraction because even a global market of viewers can only support so many professional producers. Even as YouTube delves into the area of paid subscriptions, it is unclear first, whether or not consumers are already saturated by subscriptions to entertainment networks; and second, whether the producers of these shows can actually make a living in any of these models.

Once the line between web and TV is entirely erased, I suspect there may be a flattening out in the volume of professional production consumed. If, for instance, Conde Nast’s Traveler becomes a competitive network with The Travel Channel, this does not mean the target audience for travel content will then support a third, a fourth, and a fifth network producing the same kind of material.  Consider the number of cable channels you have, add to it the number of web-based portals you use for music, TV, or film, and consider how much of that total universe you have time to access. It is entirely possible that millions of us are still consuming the same hundred or so popular products and that broad demographic data still applies to marketing for sponsors.  And of course, from a cultural standpoint, as these venerable publishing brands branch out into TV production, we must hope they don’t fall into whatever molecular altering dimension that allows a network with a name like The Learning Channel to produce Honey Boo Boo.

 

Thoughts on Leaked Steubenville Video

steubenville videoIn response to the tragedy in Newtown, CT the idea was raised by news commentators and in the blogosphere that the names of people who commit heinous crimes should be de-publicized in order to deny them even a posthumous fame we believe to be a constituent of their twisted motives. It is hard to imagine, though, that even if we could instantaneously erase the names of these sociopaths, that this would really serve as a deterrent to crimes born in psyches we cannot understand in the first place.

I find myself thinking about the subjects of infamy, depravity, and justice since watching the video released last week in which teenage boys jokingly boast about an alleged multiple rape of a sixteen year-old girl in Steubenville, OH.  The video was accessed and released to the public by a group or individual identified on Twitter as KnightSec, who claims alliance with the hacktivist group Anonymous. KnightSec exposed the video on the grounds that officials in Steubenville have been papering over the case because the accused assailants are members of the very popular football team in this small, working-class community.  This is a familiar and easy-to-grasp narrative, one that might even be true; and although I believe KnightSec is acting in a good-faith effort to see justice done, the case in general, including the release of the video, raises some disturbing and challenging questions unique to our digital times.

According to CNN, one of the difficulties in the case, even if we give local law enforcement and prosecutors the benefit of every doubt, is that much of the evidence so far amounts to teenagers referring to criminal behavior via digital and social media. Reports indicate that even the victim herself was unconscious during the alleged assaults and cannot serve as a witness to her own abuse.  There is even a report that the victim text messaged the accused saying, “I know you didn’t rape me.”  Rape cases are often hard enough to prosecute, and this one appears to be complexly warped by the bizarre world of communications in which we now live — one where depraved speech is so common among certain users of social media, that it is very hard to tell who is merely presenting himself as a pig and who is referring to actual events in real life.  Certainly, this would not be the first time a bunch of jocks assaulted a defenseless girl; and it would not be the first time teenagers used social media to brag about their own hideous behavior; but it also wouldn’t be the first time teenagers produced comments, photos, and videos that exaggerate or distort actual events for no other reason than that’s how some people behave in cyberspace.

Even the kid featured in the video released by KnightSec is not one of those presently accused in the alleged assault; and while I would like to see him and his friends marched out to the woodshed for their lack of humanity, it’s hard to get past the fact that in the video, he’s behaving exactly like an Internet troll. In fact, his similes are frankly so childishly dorky that what we’re watching could be the blabbering of an accomplice, a witness, or pathetically enough, a wannabe.  If you think the idea of a wannabe rapist is farfetched, let’s go back to October for a moment . . .

Before Gawker outed super-troll Michael Brutsch (aka Violentacrez), the senior staff at Reddit saw no problem with the enormous volume of this man’s posts glorifying sexual assault of teenage girls. To the contrary, Brutsch was rewarded with what the Internet troll wants most — attention.  And because Violentacrez yielded literally tens of thousands of followers, Reddit even rewarded Brutsch with a statuette for his popularity. Is there a connection between Brutsch and the kid in the Steubenville video?  I think there is, and it comes back to the notion of infamy.

In the age of social media, attention is currency; and negative attention is not necessarily of lesser value than positive attention. Hence, this raises just one of the questions as to the value of the kind of net vigilantism, however well intentioned, conducted by KnighSec in this case. In order for there to be a video to expose, the video had to be shot in the first place and then loaded onto a storage device somewhere that could be hacked.  Hence the choice by these boys to memorialize and save a record of this offensive and imbecilic monologue suggests at least an instinctive desire for attention. In this context, then, does releasing the video to the public potentially satisfy a dysfunctional wish for infamy among these kids? If we would contemplate erasing the name of the already-dead Newtown shooter, what about giving fifteen minutes of fame to this morally-bankrupt teenager, who may face no consequences of any kind in this matter? More broadly, as we shake our heads and think, “How can these kids behave like this?”  are we missing subtleties in the design of our technologies that reward cruelty through mob acceptance?  I don’t know the answer, but I do know that this video is not an anomaly among teenagers, and I know that misogynistic themes are very common in shadowy regions of social media that many parents may not know exist.

Of course, there is another way to look at incidents like Steubenville.  Perhaps this kind of case is no more common than it was twenty years ago; and thanks to social media, we are able as a whole society to confront these incidents more frankly and to demand both justice and solutions. It is hard not to feel, though, that human depravity is lately on the rise.  Perhaps this perception is an illusion itself, one borne of the constancy of our communications technology and, hence, the universal competition for attention.

We hope, of course, that officials in Ohio are able to parse the gibberish from the evidence, that the facts of this case will see justice served, and that above all, the girl in question receive whatever support, comfort, and help she needs.  But whether the dumb kid in the leaked video is implicating himself in an attack or just shooting his mouth off, the confusion I believe should serve as instructive in this utopian, free-speech bonanza of the digital age — that words have a tendency to correspond to actions, if not by the speaker, then by somebody who’s listening.