The Prelator

Weblog of Patrick McKay

Archive for the ‘Technology’ Category

Copyright and Fair Use in Virtual Worlds

Posted by darklordofdebate on July 11, 2010

I’ve been meaning to write on this subject ever since I began playing Second Life a few months ago and started exploring the many unique environments it has to offer. For those not familiar with it, Second Life allows users to create vast virtual environments and to buy and sell virtual goods with an in-game currency that is exchangeable with real currency. Second Life itself is extremely interesting from a copyright perspective, since its entire virtual economy is based on copyright. Since the in-game economy is based on buying and selling virtual goods, the value of these goods relies on artificial scarcity produced by copy protections ultimately backed by copyright. It is another aspect of copyright in Second Life that I am interested in right now, however–namely the copyright implications raised by the nature of many of the virtual environments themselves.

I have previously written on one important type of fan-made “remixing” of popular intellectual properties in the form of anime music videos and similar fanvids. I argue that these types of fan-made media provide far more benefit to the original copyright holders than harm, and that these types of uses should be considered “fair use” under U.S. copyright law. In virtual worlds like Second Life however, there is an even more elaborate and sophisticated type of fan-made media that is even more threatened by excessive copyright enforcement–virtual environments based on copyrighted books, TV shows, and films.

As I’ve explored Second Life I’ve noticed that some of the most popular “sims” (simulations: user-created virtual environments) are sci-fi and fantasy role play sims–many of which are based on popular movies and television shows. I have discovered probably a dozen highly detailed sims based on Star Trek, Star Wars, Battlestar Galactica, Firefly, and Stargate, as well as several based on the Myst videogame franchise. Many of these contain highly detailed re-creations of exterior and interior environments from their respective franchises, and allow your avatar to dress as characters from the series, purchase objects and weapons based on those in the series, and even fly fully operational replicas of various types of spaceships. Allow me to illustrate with a few pictures:

On the bridge of the USS Voyager in a Star Trek themed sim.

Stargate Command, from Stargate SG-1.

The Gateroom of the Ancient starship Destiny from Stargate Universe

The Battlestar Phoenix - an imitation of a battlestar warship from Battlestar Galactica.

CIC (command center) of the Battlestar Phoenix, from Battlestar Galactica

Boarding a "Viper" starfighter in another Galactica themed sim.

The city of Coruscant from Star Wars

Exploring Tatooine from Star Wars

The city of D'ni from the Myst Uru videogame.

As you can see, all of these sims are highly detailed, realistic recreations of environments from several highly popular intellectual properties–meticulously modeled down to the tiniest detail by fans who will often spend months creating these sims. And I am willing to bet most sim owners do not go through the trouble of attempting to license their sims, if that would even be possible considering how inaccessible the licensing departments at most major media companies are to ordinary individuals. This makes all of these sims potentially copyright infringing, and leaves them all merely one DMCA notice away from being taken down. This is indeed a serious risk, as those who create these seems must invest a considerable amount of time and money into creating and maintaining them. Running a full-size sim in Second Life can cost around $400 a month, which is paid either out-of-pocket by the sim owner or through donations and virtual sales paid for by members of various role-playing groups. The creators of sims like those above based on popular IPs thus run the risk not only of a lawsuit for copyright infringement, but significant financial loss as well if the sim is taken down–a risk that is not present for fanvids uploaded to YouTube. And it is a significant risk, since I found at least one instance where a Dune themed role-play sim was forced to sanitize their sim of all Dune related material after a copyright claim by the movie studio which owned the rights to the Dune series. Fortunately for them they were able to remove the aspects of the sim explicitly related to the Dune series and turn it into just a generic sci-fi desert planet sim, but for some of the sims shown above that would not be an option, since the entire sim is related to their parent sci-fi series.

Under current copyright law, it is highly questionable whether these sims would be considered fair use by a court if an infringement suit based on them ever came to trial. For a use of copyrighted material to constitute fair use, it must satisfy the four-part test of (1) the purpose and character of the work, (2) the nature of the copied work, (3) amount and substantiality, and (4) effect on the original work’s value. The first and fourth are the most important, which is why I will concentrate on them.

Under the first prong, since these sims do not directly copy anything from their source, they would fall under the derivative works right, and much of the fair use analysis would depend on whether they are “transformative” or merely “derivative.” In most cases sci-fi themed sims try to duplicate original environments from movies or TV shows as faithfully as possible, though they may change minor details or fill in parts that were not shown in the original show. It seems to me that these sims would thus be more of a simple adaptation of the original than a true transformation, since they are merely taking copyrighted scenes and adapting them to 3D virtual environments. It is a process quite similar to when movie studios license movies to videogame companies to adapt into video games.

Another important part of the first prong is whether the use is commercial or noncommercial, with noncommercial use more likely to be fair use. Most sims barely bring in enough income from donations to pay for the sim, and many sims help offset the cost by selling virtual goods which are themselves modeled after things in the series. It is possible to buy a wide variety of outfits (i.e. a Starfleet uniform), spaceships (i.e. a Puddle Jumper from Stargate, a Viper starfighter from Galactica, or the Millennium Falcon from Star Wars), and weapons (i.e. lightsabers from Star Wars), which are either fully operational in the game environment or serve as decoration. While sci-fi themed sims are probably still not making a profit (or at least not a large one), this does add a commercial aspect to them that makes it difficult to characterize them as strictly non-commercial. On the whole then, these sims probably do not satisfy the first prong of the test.

The second and third prongs are likewise questionable. The nature of the copied work is literary/artistic, which generally weighs against fair use. Under amount and substantiality, while these sims don’t by any means incorporate all or even most of the original work, they do often simulate the most important locations in their parent series, and could thus be said to take the “heart” of the copyrighted work. Finally the fourth prong is also fairly weak, as adapting movies and TV shows to video games is an established market which a well-made Second Life sim could be said to compete with, though it is doubtful this could be empirically proven. This would however make these sims likely to fail the fourth prong as well, disqualifying them from claiming a fair use defense.

Under current copyright law, therefore, it appears that these types of Second Life sims based on recreating environments from copyrighted films and TV shows are likely infringing. The question is, should they be? I believe the answer to that is no. While these types of sims may be derivative and even have limited commercial aspects, and may at least in theory compete with other video games based on these franchises, in reality any negative effect they could have on other markets would likely be negligible at best. Even the best made Second Life sims are still amateur and rather clunky in comparison to professionally made video games. Even if made by an experienced sim developer, the Second Life platform simply doesn’t allow for the same degree of functionality and realism that a professionally produced video game has, and consumers would be highly unlikely to forgo buying an officially sanctioned video game in favor of Second Life role-play environments. For example, would a Star Wars fan prefer the Star Wars themed environments in Second Life over the latest Knights of the Old Republic game? Not likely. The two are entirely different and the Second Life environments would be highly unlikely to decrease the market for the other. And even though there is an established market for licensing IPs for adaptation into video games, it’s not like the people who make Second Life sims could afford to pay the studios’ exorbitant licensing fees anyway, eliminating any possibility that they could be a revenue source for the studios.

More importantly, fans creating their own virtual worlds based on their favorite films and TV shows represents a type of cultural innovation that should be promoted rather suppressed by overly restrictive copyright laws. Lawrence Lessig loves to talk about a quote from John Phillip Suzza, who feared that the invention of the phonograph would stop young people from joining together to sing the songs of the day and would turn them into merely passive consumers of media. And that is precisely what happened with 20th century media technologies, which created separate and distinct classes of cultural creators and cultural consumers. Modern computer technologies have reversed this trend and allow “consumers” to now directly interact with the stories and songs that form our culture–in this case by actually “creating” the very worlds in which those stories take place–albeit virtually.

Ever since books and movies have existed, they have formed the backbone of our culture as common cultural reference points which we can all share and relate to. Moreover, they have always been a starting point for our imaginations, which allow us in a sense to participate in these stories ourselves. How many Star Wars fans have not indulged in daydreaming about what it would be like to live in the Star Wars galaxy, or perhaps imagined themselves as part of that great saga? Now with virtual world technologies like Second Life, individuals have the ability to play out such fantasies in a far more concrete manner, actually walking the streets of Courscant or flying on the Millennium Falcon in the guise of their Second Life avatar. It is a natural evolution of the universal desire to interact with and build upon our culture.

It was precisely this type of cultural enrichment that copyright law was designed to promote rather than hinder. It does so primarily by providing financial incentive for authors and artists to create, but we must not lose track of the fact that its ultimate goal is cultural enrichment. Copyright was never meant to give certain big companies a monopoly over culture, and in cases where fans’ follow on creativity builds on major cultural icons like Star Wars and Star Trek without substantially harming the ability of the original creators to profit from their work, it should be encouraged rather than suppressed. Not every use of copyrighted material that can be licensed should be subject to license, as in some cases it may end up decreasing cultural enrichment rather than increasing it. Such is the case here, for if copyright laws were to be rigidly applied to prevent Second Life users from building environments based on these cultural icons, a great deal of incredible creativity would be lost. This matter will only grow more important as virtual worlds continue to mature (perhaps someday even to the level of the fully immersive virtual reality portrayed in the TV show Caprica), and I can only hope that courts and legislatures begin to see the importance of protecting such follow-on creativity before copyright law is allowed to stifle this world of possibilities they represent.

It is high time we expanded our concept of “fair use” to include these types of fan-made creations, for until we do, the law will continue to cast a pall of uncertainty on all such endeavors, producing a chilling effect that can only discourage a great deal of otherwise culturally beneficial creativity.

Posted in Copyright, Law, Technology, Technology Law | Tagged: , , , , , , , , | 3 Comments »

How to Dispute YouTube Copyright Notices

Posted by darklordofdebate on March 12, 2010

How to Dispute YouTube Copyright Notices

This is a video I made yesterday describing how to dispute copyright claims on YouTube and have videos restored that are blocked by YouTube’s automated Content ID system.

This marks the official launch of my new website: FairUseTube.org which is dedicated to promoting awareness of fair use rights under copyright law on YouTube and similar user-generated content sites. Check it out!

Posted in Copyright, Law, Technology, Technology Law | Tagged: , , , , , , , , , | 1 Comment »

Why Conservatives Should Support Net Neutrality

Posted by darklordofdebate on September 23, 2009

With the FCC’s recent announcement that they will turn their broad principles of network neutrality into specific rules, I thought I would post about one of my long standing pet peeves–the fact that most conservatives don’t support this concept. I first became passionate about the issue of net neutrality in the spring of my freshman year in college (2006), when I went on a lobbying trip to DC with our College Republican’s group. We were working with the libertarian advocacy group FreedomWorks, and while I agreed with most of the things they had us advocating, I was shocked and disappointed to find we were supposed to lobby AGAINST a net neutrality bill then before Congress. At that point I had only a cursory understanding of the issue, but I was surprised that they would advocate against enforcing the basic openness and platform neutrality that the Internet is built on. When I asked one of FreedomWork’s employee’s about it, I was shocked to hear him rhapsodize about how wonderful it would be if Internet Service Providers (ISPs) could divide the Internet into “channels” and offer Internet service in “packages” of available websites like cable TV! After all, he said, the ISPs owned the networks, so they should be free to do whatever they want with them.

It was then I realized that a lot of conservatives simply don’t get what the network neutrality debate is about, and how allowing that man’s “vision” for the future of the Internet to come to pass would completely destroy everything that makes the Internet what it is. So this post will be dedicated to explaining network neutrality in terms my fellow conservatives can understand, specifically the key conservative values of limited government, individual freedom, competition, checks and balances, and property rights.

Limited Government

Perhaps the central idea of American conservatism is the concept of limited government. Every conservative can tell you that big government = bad, and explain at length the mechanisms the Founders built into our Constitution to limit the power of the federal government. But do they ever ask why the Founder’s wanted to limit the government’s power? I’ll give you a hint. The key word in that question is not government, but, power. The Founders advocated limited government not because government was inherently evil, but because they feared the centralization of power in a relatively small body of people. And it’s my contention that this is what conservatives should fear today–not “big government” but “centralized power” in any form. That should be especially true of “coercive power,” the ability to compel obedience by force.

It used to be that, as libertarians love to say, government had a monopoly on coercive power. That is no longer the case. In the modern world, technology has given large corporations a great deal of coercive power–more than many governments ever had in the past. This power comes not through the threat of prison if you disobey them (though in many cases the law gives them that power as well, though indirectly), but through technology that can control exactly what we can or cannot do, even with our own property. And unlike government laws, rules that are enforced by technology enforce absolute compliance, with no option to disobey because technology makes it impossible. While government laws say, “you shall not,” the laws of technology say, “you cannot.” This is what Lawrence Lessig calls “architectures of control,” and it is this power that modern technology corporations wield over their customers. It is that kind of power which MUST BE LIMITED if we are to maintain a free society.

Individual Freedom

Nowhere is the power of corporations to restrict individual freedom more apparent than with ISPs, who control our access to that great engine of culture and commerce we know as the Internet. It’s simply a fact of life in modern society that you must have Internet access. Without it, your quality of life becomes severely diminished and you are incapable of doing many things essential to everyday life.

Yet your ISP, if it chooses to do so, is capable of exercising tremendous power over your ability to access this crucial resource. If it wants to, it can block websites, degrade service, or give preference to some websites and restrict access to others. In short, there is no end to the amount of arbitrary ways your ISP could interfere with your free use of the Internet if it wanted to–and believe me, ISPs want to. The possible new revenue streams from interfering with their customers’ free access to the Internet and forcing either the customers or third parties to pay for the freedoms we currently enjoy without paying extra are endless. Just think about how much Borders would pay your ISP to only allow you to access their site and not Amazon, or how much Ebay would pay so you couldn’t access Craigslist. Without network neutrality laws, all of this is legal. The only thing that has prevented these things from happening on a large scale already is social pressure from neutrality advocates.

Competition

Now at this point, a good conservative will say, “what about competition?” Surely that will keep these things from happening. To which I reply, “what competition?” Broadband Internet is for the most part a natural monopoly. Since it would be impractical to have a dozen different companies running cables to your house, local governments grant monopolies to certain companies to provide Internet service.

In most places in the US, this results in a duopoly between the government-granted cable company monopoly and the government-granted phone company monopoly.  There is some competition between the two, but typically not much, which is why US broadband growth has effectively stagnated and the US is currently ranked something like 30th or 40th in broadband penetration. And if both Internet providers in a given area had sufficient economic incentive to restrict their customer’s access to the Internet, they would both do it. The consumer would thus be stuck with severely restricted Internet limited only to their ISP’s “preferred partners.” The only “competition” would be that Cox allows you to access CNN while Verizon allows Fox News.

Check’s and Balances

At this point, I hope a true conservative would see that we cannot allow anyone, be they government or private corporations, to exercise this kind of power. The Founding Fathers established a system of checks and balances to prevent any one branch of the government from becoming too powerful. In this day and age, when corporations can also exercise tremendous power over individual citizens, we need checks and balances to hold them accountable as well, and the government is the best suited entity to do it.

Many people object that net neutrality would open the door to government regulation of the Internet. Well I’ve got news for you. The government already regulates the Internet! Local governments grant monopolies to broadband providers. Various federal agencies enforce standards for electronics related to the Internet and regulate online commerce. And the FBI enforces laws against distributing child pornography on the Internet, which I think all but the most die-hard libertarians would agree is a good thing. And don’t even get me started on how government laws about patents and copyrights regulate the Internet. The truth is, the government will always regulate the Internet. The only questions are how much and whether it will do so for good or for evil.

The argument about net neutrality setting off a slippery slope of government regulation is simply a straw man. Net neutrality is not about regulating the Internet anymore than current laws already do. It’s simply about laying down ground rules that preserve the open nature of the Internet that all the innovation that has taken place online up to this point relies on. As the FCC chairman recently said, it’s merely about enshrining in law the basic “rules of the road” which already implicitly exist. Net neutrality is about preserving competition, not destroying it.

Property Rights

The final conservative argument against net neutrality I will address is that of property rights. This argument basically goes, “Since ISP’s own the pipes, they should be allowed to control what flows over them.” On it’s face, it seems like a common-sense argument. Since ISPs do own the physical infrastructure of the Internet, shouldn’t they be able to control how it is used? Maybe. But the Internet is much more than the vast array of routers, hubs, fiber optic cables, data centers, and servers that form its physical backbone. In reality, the Internet is a virtual world, an engine of commerce, society, and culture that brings people together from every part of the planet and is far greater than the mere sum of its parts. It is the single greatest machine ever built by mankind–one that spans the entire planet and abolishes the limitations of the physical world.

People speak of “cyberspace” and “realspace” as if they are two completely separate wolds, which, though closely linked, have completely separate existences. In a way that’s true. Because even though it is dependent on its physical infrastructure, the Internet has taken on an existence of its own which transcends its physical parts. This virtual wold is a true commons, in that no single entity can claim ownership of it and anyone is allowed to access any part of it they wish. Different people own small parts of it, but no one actually owns all of it, and thus no one can completely control it.

Based on this, what right does any individual ISP have to say that because they own the physical infrastructure which gives a certain number of people access to this virtual world, they have the power to control what parts of it people see or what they can do there? That would be to claim ownership over something they have no right to. Gatekeepers to this world have the right to do only one thing–let people in or keep them out. Once they are in, they have no right to say what you can do inside of it anymore than the airline I fly on to Chicago has the authority to tell me what I can do in Chicago. They are just the conduit, nothing more.

ISP’s thus have a right to charge you in exchange for giving you access to the Internet and to manage their networks in a way to insure fair access for all. But to attempt to interfere with the basic nature of cyberspace itself and their users’ experience there is utterly beyond their moral rights to control their property, and becomes a unjustifed interference with individual freedom. And just as laws in other areas prevent people from infringing on the rights of others, so must laws protect the rights of Internet users from unjust interference by their ISPs.

That is the reason conservatives should support network neutrality laws, and why I applaud the FCC for its decision to enact formal rules enforcing it.

Posted in Law, Politics, Technology, Technology Law | Tagged: , , , , , , , | 9 Comments »

Are Anime Music Videos Fair Use?

Posted by darklordofdebate on June 19, 2009

Anyone who knows me probably knows I like studying issues related to copyright law–a fascination driven by the fact that as a child of the Net Generation, I have grown up immersed in what Lawrence Lessig calls the “read-write” culture fostered by digital technology, where virtually any action I take online raises potential copyright implications.

Nowhere is this true than the hobby I have had since high school of creating “anime music videos” or AMVs (music videos setting footage from anime shows and video games to popular songs) and posting them on websites such as YouTube and animemusicvideos.org. And it’s not just me; there are tens of thousands of these videos posted online and they have taken on a life of their own as an art form in their own right, with a whole subculture of AMV editors with contests, awards, and websites dedicated to them.

Yet despite their popularity, I am astonished at the lack of articles analyzing where these videos stand in relation to copyright law. Most articles I have been able to find on the subject simply assume they are copyright infringement, in which case American copyright laws have essentially rendered this entire art form presumptively illegal. However, I am not convinced of this, and I think a solid case could be made that AMVs fall firmly under the doctrine of “fair use” in US copyright law. After my own experiences with copyright run-ins related to my AMVs (and subsequent victories), I thought I’d post a brief analysis of why I think there’s a good case to be made for AMVs as fair use.

As audio/visual works, there are two separate components of AMVs that raise potential copyright concerns and must be analyzed separately to determine if they constitute fair use–namely the video and audio tracks.

Video Track

AMVs typically take ripped footage from anime movies, TV shows, and video games and re-edit them using brief clips no more than a couple seconds in length each set to music, telling a new story by juxtaposing video clips with the beat and lyrics of the song that emphasize different aspects of the original plot. Because this heavy re-editing is so obviously transformative, there is a very strong case to be made that the video portion of AMVs constitutes fair use. Running down the four criteria for fair use in US copyright law, we get the following:

1. The Purpose and Character of the Use

a. Non-commercial — Non-commercial works are much more likely to be fair use than commercial works for profit. Anime music videos are purely non-commercial works created for fun and entertainment and not personal or financial gain.

b. Transformative — The more a work changes and adds to the original rather than merely copying it verbatim, the more likely the use is fair. The standard for determining whether something is “transformative” rather than merely “derivative” is whether it “merely supersedes the objects of the original creation or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” (Campbell v. Acuff-Rose Music). At least in regards to the video track, AMVs so heavily modify the original source footage by clipping, reordering, and overlaying special effects as to make it an entirely new creation. While the use is certainly “derivative,” re-editing plus the new meaning imparted by the particular scenes selected and the music makes AMVs highly transformative, weighing significantly in favor of them being fair use.

2. Nature of the Copyrighted Work

Under copyright law, published materials are more likely to allow fair use than non-published works, and factual works are more likely than artistic works. In this case, the original copyrighted material (anime footage) is published (counting in favor of fair use) artistic work (counting against fair use). However, this factor is the least significant of the four, and can be outweighed by the other three.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Generally, the less of a copyrighted work that is used in relation to the whole the more likely it is to be fair use. In the case of AMVs, only 3-5 minutes of footage are typically used, consisting of 1 or 2 second clips, often out of hours of available source footage. While these clips may often contain the “heart” of the original work (the most significant scenes of the original anime), the minuscule amount of footage used combined with the brief duration of clips weigh significantly in favor of fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is often the most important prong of the fair use test, and together with the first prong is the one most strongly in favor of AMVs as fair use. In the case of non-commercial works, the burden of proof is on the copyright owner to prove harm to the market or value of the work (Sony Corp. v. Universal City Studios). In the case of AMVs, the small amount of footage used, the reordering of brief clips, and the absence of the original audio track makes it almost impossible for an AMV to be a substitute for the original work (i.e. nobody would watch the AMV instead of the original work). There is also no market for licensing anime clips for use in amateur music videos. Thus AMVs would be highly unlikely to have a negative impact on the market for the original work. In fact, they are more likely to have a positive impact on sales of the original, as they would increase interest in the original work and drive increased sales, effectively acting as a free promotion for the source anime. This factor also weighs heavily in favor of fair use.

Conclusion:

Because the video track of AMVs is non-commercial, highly transformative, uses only a small portion of the original, and has no negative impact on the market for the original, there is a very strong case that the video portion of AMVs constitutes fair use.

Two notes, however. First, in cases where an AMV creator  had to break the copy protection on a DVD to obtain the source footage, that would be illegal as they violated the anti-circumvention provision of the DMCA, which prohibits any circumvention of copy protection regardless of whether or not the use is fair. Second, because AMV creators are usually their most avid fans and they wish to avoid upsetting them, anime creators are highly unlikely to ever mount legal challenges against AMVs. Thus the video portion of an AMV will likely never be the subject of copyright action. The most likely threat comes from the owners of the copyright for the audio track, to which I now turn.

Audio Track

Since AMVs typically use popular songs by high profile artists signed under major record labels (an overall much more litigation-happy bunch than anime creators), it is because of the audio track that AMV creators are most likely to experience copyright problems. Wind-up Records (the label for Evanesence, Seether, and Creed) has already issued take down notices barring AMVs using their songs from animemusicvideos.org, and as I mentioned in my last post, I myself have run up against Warner Music’s YouTube embargo with my own AMVs. Unfortunately, the audio portion of AMVs also has the weakest case for fair use, though I believe a good case can still be made that they are indeed fair use.

1. The Purpose and Character of the Use

a. Non-commercial — Once again, AMVs are completely non-commercial works which makes them much more likely to be fair use. While they are often posted on commercial sites such as YouTube, that has no bearing on whether AMVS themselves are fair use or not. Because of this I find it highly ironic that YouTube has attempted to work out licensing agreements with music labels to allow users to use their music in user-generated videos. Under the DMCA safe harbor provision, the responsibility to ensure content is non-infringing is entirely that of the user that uploaded the videos, not YouTube. Thus whether or not sites like YouTube have a licensing agreement with labels such as Warner has no bearing on whether the videos are infringing or not.

b. Transformative — It is much less clear that AMVs are transformative in relation to the music source than the video source. Since they usually use a whole song without editing or altering it, they clearly don’t transform the song in the sense that they make it into something different as with the video track. However, I think there is still a case to be made that AMVs are transformative in relation to the song used in “altering the original with new expression, meaning, or message.” Overlaying the song with poignant video images which are often used to translate the lyrics literally on screen or otherwise highlight certain things about the song clearly adds a new layer of meaning and expression to the song. The video and music are combined to create an entirely new message which is much greater than the sum of its parts. The music reflects on the video and the video reflects on the music, imparting new significance to both. It is thus a qualitative transformation rather than a quantitative one. The viewing experience of watching an AMV is qualitatively different than either watching the anime by itself or listening to the song by itself, and thus AMVs could still be considered transformative and likely fair use.

2. Nature of the Copyrighted Work

As with the video, the source songs in AMVs are published artistic works. The fact that they’re published (assuming you don’t use a pre-release leak or something) is slightly in favor of fair use, while the fact that they’re artistic rather than factual works is slightly against fair use. Overall, this prong isn’t very significant either way.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This prong is slightly problematic, since an entire copyrighted song is used. This would tend to weigh against fair use. However, some cases where an entire work was copied have nevertheless been held to be fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” In this case it could be argued that the entire song is needed, since the whole point of an AMV is for the song to shape the video and for the video to illustrate the song. Using any less than the entire song would make for an incomplete video and would reduce the power of the video. If the audio in the video is encoded at a significantly lower quality than CD quality audio, you could also argue this point qualitatively, since the song in the video is too low quality to substitute for the original. Nevertheless, this argument is still fairly weak and it would be a better strategy to argue this prong is outweighed by the other prongs.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is where the strongest case for usage of the song being fair use can be made. Once again, in non-commercial cases, the burden of proof is on the copyright holder to demonstrate a negative effect on the market for the original work. There are two possible ways they could show this—the effect on sales of the original song and the impact on a possible market for licensing the song for audiovisual synchronization:

a. Effect on the market for the original song: Copyright holders could argue that AMVs could serve as a substitute for buying the original song if people merely listen to the song on YouTube or rip the audio track from the video and save it to their computer instead of buying the song. While both of these things are certainly possible, it would be difficult for the copyright holder to prove an actual negative impact on sales. Those who are content to merely listen to the song on YouTube would not have been likely to buy the song anyway, while relatively few people possess the technical knowledge to rip the audio from a video and use that in place of buying the song. Those that do would most likely consider the audio rip of inferior quality to purchasing the song (or merely illegally downloading it a different way), and would thus not likely consider it worth the trouble. Both of these factors also most likely would be outweighed by the positive effect the video would have on the market for the original song by giving the artist additional exposure and free promotion, motivating people who otherwise might not have heard the song to buy the artist’s work.

b. Effect on a possible licensing market: In large-scale commercial scenarios, there is an established market for audio visual synchronization rights, where musical artists sell the rights to filmmakers to “synchronize” their music with video footage such as in films or television commercials. However, there is at present no market for licensing tracks to individual hobbyists wanting to create amateur non-commercial music videos for fun. Indeed, if such an individual tried to license a song for an AMV, they would most likely find themselves lost in a maze of legal red tape or simply ignored by music labels who wouldn’t take their request seriously. Even if they did, the labels would most likely insist on charging commercial-scale license fees on the level of several thousand dollars per use—an overwhelmingly cost prohibitive sum for amateur non-commercial use. Because a legitimate market for licensing songs for uses such as AMVs does not currently exist, there is therefore no potential for this use to have a negative effect on such a market. You cannot negatively impact that which does not exist.

Conclusion:

While the case for the use of copyrighted music in the audio track of an AMV is not as clearly fair use as the use of anime footage in the video track, I think a strong case for fair use can be made here as well. The best strategy in this area would be to emphasize the non-commercial transformative nature of the use and the absence of any negative impact on the market for the original song. Indeed, AMVs often have a positive effect on song sales, since many people discover bands through watching AMVs they would not otherwise have heard of and in turn go and buy their music. Music videos can serve as valuable promotion for musical artists—something artists themselves recognize when they create their own music videos to promote their music. The transformative nature of AMVs plus their non-commercial character and absence of harm are thus strong indicators that they constitute fair use.

More resources about anime music videos and fair use:

Posted in Copyright, Law, Technology | Tagged: , , , , , , , , | 8 Comments »

It Pays to Know Your Rights Under Copyright Law

Posted by darklordofdebate on April 8, 2009

Today I realized I hadn’t been paying too much attention to marketing my YouTube channel of late. I had recently noticed that one of my anime music videos using the song “Hand of Sorrow” by the Dutch symphonic metal band Within Temptation had been getting a lot more views and comments lately. By far my most popular AMV on YouTube, it now has just over 80,000 views, which is pretty awesome. But it wasn’t until I looked at the view statistics using YouTube’s handy analytics tool, Insight, that I realized why it has experienced this sudden increase in traffic.

Here is a screenshot of a graph of the number of views my video has gotten over the last few months:

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

Within Temptation is licensed in the US under RoadRunner Records–a subsidiary of Warner Music Group. You’ll notice a huge jump in views of my video beginning around January 5th, where my video went from averaging around 100 views a day to around 400. This just happens to coincide with when Warner had a licensing fallout with YouTube and demanded that YouTube block all videos using songs it owned the rights to.

At the time, this caused a huge stink among YouTube users (though not as big as I wish), who beginning in late December and early January suddenly found their previously allowed content featuring WMG songs being blocked by YouTube’s copyright filters. This caused a huge problem with the same artist as my video above–Within Temptation, who in November had just held an innovative YouTube contest in which they provided users with behind the scenes concert footage and asked them to make a music video of the same song I used in my AMV. The winner, who had won a free trip to a concert in Amsterdam, now found his video yanked off YouTube, dispite it being done with the express approval of the band and being featured on the band’s website.

The result of all this was that everyone who uses YouTube is now mad at Warner, and the Electronic Frontier Foundation has been urging people whose videos are unjustly pulled from YouTube to fight it by disputing the automatic takedowns with fair use counterlclaims, and has even offered to defend those who do in court if necessary. The reason for my video’s sudden increase in popularity? I did precisely that.

Somtime between the last week of December and the first week of January, I received a notice from YouTube saying my video had been disabled because it had been identified as infringing on Warner’s copyright by YouTube’s automatic Content Identification System. Because this was one of my most popular videos, I wasn’t about to let them delete my video just because a computer had matched the song I used with one on Warner’s blocklist. And because I have spent the last four years acquiring a thorough knowledge of copyright law, I was pretty sure I could successfully defend my video as a fair use of Warner’s content.

So I immediatly disputed the copyright claim, citing the following reasons for why my video constituted fair use under US copyright law. It was (1) non-commerical and not for profit, (2) transformative in nature (combining music and video), (3) was of sufficiently low quality that it could not reasonably compete with the original work, and (4) could have no possible negative effect on the market for the original song, but would in fact promote the song and motivate people to buy it. My video was automatically restored after filing the dispute, and a couple months later a message appeared next to the video saying the dispute had been sucessful and the copyright claim had been removed.

However, as the statistics indicate, most other people apparantly didn’t do what I did. Before the Warner ban, there used to be numerous videos using that same song on YouTube, including several other Final Fantasy AMVs. Because I defended my rights under copyright law and other users didn’t, my video is now one of only a few videos using that song, and now appears at the top of the YouTube search list. The YouTube analytics also indicate that at the same time, the number of people who discovered my video through related videos fell dramatically, while the number who discovered it through YouTube searches rose dramatically. So I guess I have Warner to thank for removing all my competition so my video could increase in popularity. I guess draconian copyright enforcement has its place after all!

Posted in Copyright, Law, Technology | Tagged: , , , , , , , | 7 Comments »

Musings on the End of the World

Posted by darklordofdebate on March 5, 2009

I’ve discovered bi-weekly bus rides into DC are a great time for listening to audio books, so having recently finished Phillip Pullman’s His Dark Materials series, over the last couple weeks I’ve been listening to the City of Ember books by Jeanne Duprau, continuing with the theme of young-adult fantasy/adventure stories. I watched the movie of City of Ember the same week I watched Golden Compass for the first time, which put both high on my reading list (the movie adaptation of Ember was far better than Golden Compass though, since they didn’t butcher the plot near as much). While the Ember books didn’t have anywhere near the literary quality or philosophical depth of Dark Materials, they did combine two things which have always fascinated me–an underground city and a post-apocalyptic setting.

I’ve always loved caves and being underground (as evidenced by my penchant for exploring storm drains), and the idea of an underground city intrigues me. The scenes involving Zion were my favorite parts of the Matrix trillogy, and I absolutely can’t wait until they make the movie of The Silver Chair in the Narnia series so I can see how they visualize they underground city in that book. For the last few years I’ve also had a growing fascination with post-apocalyptic survival and dystopia stories. I love disaster movies like The Day After Tomorrow and the TV show Jericho, and books like 1984, Brave New World, the Giver, etc.

These types of stories are especially vivid for me, and I often wonder what it would be like to survive some kind of great disaster that causes a significant disruption to society, and wonder what life in such a world would be like. Literature provides different answers, from the rise of monolithic totalitarian states like in 1984 to a new dark age as in the Ember books.

This last idea I find particularly intriguing. The Ember books take place approximately in the 2340’s, after a combination of nuclear war, disease, and famine decimated Earth’s population around the year 2100. Needless to say, it’s a very different take on the 24th century than Star Trek! Humanity never really recovered from the disaster, and society is reduced to a number of small settlements and villages with no more than a few hundred people, which have reverted to a largely pre-industrial civilization–albeit with remnants of the old civilization scattered about and re-purposed for new uses. There’s no electricity, no plumbing, and no gasoline or motorized vehicles (they rip the engines out of pickup trucks and tow them with oxen). People live in thatched earth huts, use candles for light, and survive on subsistence level farming. Virtually all knowledge of how to make or use present-day technology has been lost, and current society has been mythologized as a lost golden age.

This idea intrigues me, and I often wonder if such a thing is possible. Could all our knowledge and technology really be lost? Is it possible for a civilization as advanced as ours to completely disappear? From history I know that all nations and civilizations have ultimately ended, and yet today humanity seems to have advanced so far technologically and become so globalized socially that it would be impossible for that civilization to collapse. And can a nation as powerful and advanced as the United States really fall? What would such a fall look like? What would it take for America to actually cease to exist? And what kind of world would follow if it did?

Yet as impossible as it seems, there are other things about our modern world that just seem untenable in the long-term. Can technology really continue advancing at the incredible pace it has for the last 200 years? What are the limits of science and technology? For thousands of years, mankind lived essentially the same, and it’s only during the last few centuries that the kind of technological progress has taken place that created the modern world as we know it. Will that progress continue indefinitely or will we one day take it too far and bring about a calamity that erases all the progress we’ve made?

Then I read articles talking predictions for future biotechnology–where neural interfaces will merge man and machine and where regenerative medicine will make man essentially immortal. And I wonder, how much longer will God allow this to continue? If God smacked man down when he got too arrogant at the tower of Babel, how much more are we setting ourselves up for a divine smackdown today, with skyscrapers reaching thousands of feet taller than Babel ever did and with people claiming they can make man into gods by merging our minds with computers? Even if that doesn’t happen, it seems sooner or later man must pay a price for all his technology. Even if not through environmental disasters like global warming (which I still doubt is even real), can we continue using energy resources at the rate we have for the last century and expect to still be able to power our advanced technology 500 years from now? Perhaps Christ will come back before then and we won’t need to worry about it, but what if he waits thousands of years? Can humans continue living the way we do and with all the potential for self-destruction that exists today?

I think one reason apocalyptic fiction appeals to me is that it expresses a nagging feeling I often have that perhaps this world will end during my lifetime–that maybe I will experience a catastrophe of such magnitude that it will bring an end to America, or even modern civilization itself. There are so many things wrong with the world–economic collapses, terrorism, the possibility of nuclear war–that I wonder if it’s not inevitable that something will happen that brings it all to an end. Oh I know the human race isn’t going die out–God would never let that happen–but He never promised to preserve this particular civilization or this specific country.

I remember a few months ago reading an article where a Russian intelligence expert predicted the United States will collapse and break up in the next few years. While the guy obviously had a vested interest (he seemed a bit too happy at the idea of Russia conquering Alaska), and however much we may mock his idea as preposterous, I must say I sometimes wonder if he might be right. I think the current recession (depression?) has demonstrated that capitalist economies are inherently unstable and subject to total collapse at any time. And government controlled economies are even worse–which is why Obama’s so-called stimulus plan will do absolutely nothing and will probably make things even worse. America is weaker now that it has been in a long time, and if a rogue nation like Iran decided to take advantage of America’s weakness and light off a few nukes in major American cities, I wonder if our country could really hold together or if it would collapse into anarchy as portrayed in the TV show Jericho.

These thoughts are especially vivid on my weekly bus rides into Washington DC. As I sit staring at the magnificent buildings all around me–with their gleaming white facades of neoclassical columns and Romanesque engravings that practically scream of permanence, majesty, and power–I wonder how much longer it will all really last. What if I woke up tomorrow and Washington was gone? What if I was one of the last people to see that beautiful city, and all that remains for future generations is a distant memory of a time when America was great and people lived in comfort and luxury, surrounded by machines with almost magical powers? What would I tell my children in those days? How would I describe these things to them, which would be as foreign as the idea of non-passengers being allowed on airport concourses is to the child born after 9-11? What if I, in the words of The Day After Tomorrow, have spent my entire life preparing for a future that no longer exists?

In the end, I am reminded how everything in this world is only transient and temporary. Nothing is fixed, nothing is permanent. And nothing should be taken for granted. For Christians, we may take comfort in the knowledge that this world is not our true home, and that our true citizenship belongs to the Kingdom of Heaven not earthly nations which rise and fall like the tide. No matter what the future holds, we may live secure in the knowledge of His sovereignty, knowing that all things work together for His glory. For me, I also resolve never to take my world for granted–to live the life I have been given to the fullest and treasure it as much as possible. I wish to see as much and learn as much as I can, so if this world ever does come to an end, it will still exist in my mind, and to me at least, can never truly be lost.

Posted in Literature, Personal Reflections, Technology | Tagged: , , , , , , , , , , , , , , , , , , | 2 Comments »

The Injustice we call Copyright Law

Posted by darklordofdebate on December 16, 2008

It’s been way too long since I’ve posted on this blog, so I’m going to share a post I recently wrote on my favorite subject: copyright law. While I have held these opinions for a long time, this is the first time I have really attempted to write them out in a coherent manner. It is my contention that American copyright law is such a broken, outdated, immoral, and corrupt system that it has lost all moral legitimacy in the eyes of the public, and is desperately in need of reform. I will explain my reasons for this belief below.

First, we need to examine the reasons copyright exists and the primary argument in favor of tough copyright restrictions, namely that music “piracy” hurts artists and is killing the music industry. Regarding the impact of piracy on artists, most people act like this is a settled question, when in fact it is anything but that. Sure you have studies galore sponsored by Hollywood and the recording industry saying they’re losing billions to piracy, that it’s hurting artists, etc. And then you have other studies concluding that the effect of piracy on music sales is “not statistically distinguishable from zero.” Which one of these is right? I honestly don’t know. In some cases, the numbers cited are simply false, such as when the MPAA once admitted it blatantly lied about the figures in one of its studies and made the number up. Other studies are genuine though, and deserve to be evaluated fairly. Having studied the basics of social research design and read a great deal on this particular subject, I’ve concluded it really comes down to what assumptions a given study makes, which in turn depends on the biases of the researchers.

The music industry automatically assumes there is a direct 1:1 correlation between downloads and lost sales, so every song downloaded equals a lost sale. With that assumption, it’s little wonder they conclude the music industry is losing billions to piracy. Even then if you actually add up all the loses they claim you find it’s a miracle the music industry still exists at all, considering that the total loses their studies predict are greater than the entire gross revenues of the music industry in the last 10 years.

Other studies attempt to take into account effects such as downloads motivating future sales, helping people discover new artists, sampling and then buying, or the fact that many people who download would never have bought the music anyway if they could not get it for free. When you question the basic assumption of a 1:1 correlation, the impact on the music industry is significantly less. And while it’s true some of these studies are relatively old (2002) keep in mind that research studies like that take a long time to perform so newer studies are not yet available, and that 2002 was still during what many people consider the heyday of p2p when mass illegal downloading first really took off and when you would have seen the most dramatic affect on music sales if indeed there was one. From this, I think the only really safe thing we can conclude is that while there is some negative effect on music sales from downloading, it is almost certainly not a 1:1 correlation, and every download does not in fact equal a lost sale. Beyond that, the jury is still out.

Second, regarding the morality of music piracy, that also is a sticky question. People often try to simplify the debate by equating piracy with theft, which is simply an invalid comparison. There is a reason our laws classify piracy in a totally different category than actually theft, simply because when you make a copy of a digital file it has no effect on the original. The concept of theft inherently entails the idea that when one person steals something, the original owner no longer has it in his possession, which with intellectual property is obviously not true. When my actions do not deprive you of your property, it cannot be called theft. Thus I think it is wrong to classify copyright infringement in the same moral category of property theft.

At it’s core, copyright is an application of what economists call the Coase Theorem, which is designed to supply incentives for the creation of positive externalities (beneficial things which characterized by limitless supply and the near impossibly of restricting access to them). It does this by creating a regime of artificial property rights, granting the creator exclusive right to produce “copies” of his creative work, which in theory allows him to benefit from that work providing an incentive to create it. Modern copyright law is thus a very utilitarian policy. Rather than recognizing some kind of inherent right of mankind as physical property rights do, it is meant to achieve a policy objective of, in the words of the Constitution, promoting “the progress of science and the useful arts.” This makes copyright merely a legal convention with no inherent moral value in itslef. In terms of legal philosophy, violating copyright law would be considered mallum prohibitum (evil because it is prohibited) rather than mallum in se (evil in itself).

The question then becomes, is violating the law always immoral? The typical Christian answer is “yes” since God commands us to obey our authorities, but I’m not convinced of this. It is also a long held aspect of Christian legal philosophy that “an unjust law is no law at all” (Augustine), and after studying copyright law extensively over the last few years I have come to the conclusion that the entire system of American copyright law is so chaotic, confused, corrupt, and in many cases blatantly unjust that it has lost any claim to genuine moral legitimacy. This does NOT mean we should feel free to violate the law at will, just that it is not necessarily immoral to do so and in some cases could be morally justifiable.

Indeed, it is almost impossible to NOT violate copyright law on a daily if not hourly basis, with some studies concluding that the average person incurs thousands of dollars in copyright liabilities every day. Technically every time you view a website on the internet copyright law is invoked since the site’s content is temporarily copied to your hard drive, though it is doubtful that any court would actually declare this illegal. The RIAA has stated they consider it illegal to rip legally purchased CD’s to your own computer, which technically makes a copy of the music. The DMCA explicitly makes it illegal to break the copy protection on legally purchased digital songs, even for personal use. It is thus illegal for me to break the DRM on a song I purchased from Wall-Mart’s music service to allow it to be played on my iPod. Likewise it is illegal for me to break the copy protection on a DVD to rip it to my computer either for personal use or even things that would otherwise be protected fair use, such as using it for commentary or criticism. It is illegal for me to take video footage at debate tournament and post a music video of it using copyrighted songs to YouTube (which I frequently did while I was in NCFCA), even though that video has zero potential to impact the artist in any way. Documentary film makers spend thousands of dollars clearing the rights to every copyrighted image, video clip, or song in their film, even if it just appeared briefly in the background of a scene they filmed themselves; and if they don’t they risk hundreds of thousands of dollars in legal penalties.

In the related area of patent law, large successful corporations are frequently held hostage by tiny groups of “patent trolls” who can sue for millions merely because they own a patent on a vaguely similar idea to the company’s product. Even if it is totally bogus, these companies still have to spend thousands of dollars in legal fees to defend themselves, and usually settle out of court to avoid the legal hassle. A similar kind of extortion is seen with the RIAA music downloading lawsuits, which sues thousands of people every year based on extremely weak evidence, but still succeeds in extracting thousands of dollars in settlements from people who are unable to afford the high cost of defending themselves in court and unwilling to risk incurring penalties in excess of $100,000 if they fail to prove their innocence. Even when these cases do go to trial, the victims are given virtually no due process, but are presumed guilty unless proven innocent; and judges frequently award huge judgments to the recording industry based on murky legal principles and technology they admittedly do not understand.

All of these injustices are totally legitimate under modern American copyright law, and are in fact encouraged by it. While copyright started as a means to promote progress in art and science, today it is anything but that, and likely PREVENTS more creativity and innovation than it encourages. In principle it is a beautiful thing, but in practice it is nothing more than a corrupt regime of injustice and extortion, which in my mind deprives it of any real moral legitimacy.

However, even if I am wrong on this, I’ll leave you with a final thought. The whole issue of whether music piracy is morally right or wrong, whether it hurts artists or not, etc., is really irrelevant. This is because no matter what you think about things like illegal downloading, it is not going to go away. You cannot simply make the internet disappear. Digital technology and its effects on creative work are here to say. The only question is how we will respond to it. For the last 5 years, organizations like the RIAA have waged war on the youth of America for this thing they call “piracy.” Yet nothing they have done has had the slightest impact on illegal downloading or reduced it in the slightest. Recent studies estimate that approximately 80% of American youth still illegally download music. In short, the war was lost before it even begun. Attempts to deal with the problem of piracy have thus clearly failed. The only question is will we continue to criminalize an entire generation of kids who merely do what technology enables them to do, teaching them to live with the mindset of criminals and decreasing respect for the law as a whole; or will we take advantage of numerous proposals for alternate systems which still provide incentives for artists to create but do not make 80% of American kids into criminals?

Posted in Copyright, Law, Technology | Tagged: | 2 Comments »