My Hitler meme video Digital Humanities and the Case for Critical Commons was created to publicize the relaunch of Critical Commons, a site that promotes the fair use of media by educators. I was contacted by Alison Hanold of the Center for Social Media at American University, who was writing an article about YouTube’s takedowns of the Hitler videos and she generously included my my thoughts about the Downfall takedowns:

I found the latest round of Downfall takedowns to be unfortunate and poorly timed on the part of Constantin Films, which is now being subjected to disproportionate resentment and vilification. I’m not saying they shouldn’t be criticized, but there are many other much worse offenders among the copyright industries’ takedown trolls and it’s toward them that our real outrage should be directed. The shock-and-awe strategies that have been favored by members of the MPAA and RIAA for the past decade have had an impact on some people’s behavior and it has instilled fear and paranoia in many others. But, like military shock-and-awe campaigns, it’s short-sighted and ultimately counter-productive. The longer-term impact of such mass takedowns is organized resistance and legal efforts that will ultimately have a greater cost to the media industries than a mere public relations nightmare. Creators, students, educators, vidders (etc.) have unprecedented resources and support at their disposal in the form of the CSM’s Best Practices guides and a growing body of court decisions supporting fair use. Indiscriminate takedowns that ignore the legitimate protections of fair use are just as illegal as commercial piracy and it’s time for the industries to start being held accountable for their actions.

In retrospect, I think the real issue here is not the actions of Constantin Films, a relatively small player who has been swept into the current copyright wars, but the resulting wave of awareness about YouTube’s use of automated takedown systems, including ContentID, which was used by Constantin to order the Downfall takedowns. Of course, none of this is intelligible outside the context of the current Viacom v. YouTube litigation, which could significantly undermine current interpretations of the DMCA safe harbor clause that made YouTube a billion-dollar company and made online video a key part of the cultural vernacular for millions of creators. While automated takedowns and “fingerprinting” systems that sniff for copyrighted content while a file is being uploaded may have once seemed like the silver bullet to fight unauthorized uses of copyrighted materials, such systems are incapable of making nuanced determinations about the fairness of a given use. It will be no small irony if these automated measures, intended to deter and intimidate even legitimate users, turns out to be the “downfall” of the copyright industries’ last-ditch efforts to hold onto a fading business model.

The OCW consortium originated at MIT in 2002 and has become one of the most widely known and influential bodies of open academic resources worldwide. The MIT initiative famously achieved a near 100% participation rate among faculty members for whom contribution of their course materials was entirely voluntary, though strongly encouraged by the MIT administration. Interestingly, one of the few faculty dissenters was Henry Jenkins, then Director of MIT’s Comparative Literary Studies program and himself an outspoken advocate of open education and networked learning. Jenkins’ surprising refusal to participate in OCW marked an act of civil disobedience, designed to call attention to his belief that the consortium’s approach to questions of fair use was overly conservative. In an effort to avoid any controversy over copyright issues, the OCW maintained a near zero-tolerance for copyrighted content in its online resources, forcing them to focus a large percentage of their efforts on identifying and removing copyrighted materials from online course content (often to the detriment of learners), even when fair use might readily apply as defined in the new Code of Best Practices.

The OCW guide opens with a section devoted to “Common Copyright Confusions” designed to dispense with some of the more obvious misunderstandings about what is allowable in open courseware contexts. The guide goes on to describe a number of specific situations and the principles by which a reasonable decision about fairness of use might be made. Since all determinations of fair use are radically dependent upon context and specifics, there is never a one-size-fits-all answer to any question of fair use, and the guide offers insights into some of the most likely situations that an OCW educator might face.

The new guidelines echo several of the now familiar categories of reproduction including incidental capture, critique and analysis, illustration, etc., while delving specifically into issues of particular relevance to OCW educators. Here, the guide offers welcome relief to those who may previously have only tried to satisfy the extremely conservative parameters of the TEACH Act in defining what constitutes classroom teaching and the technological limitations that must be in place to accommodate online learners. Unlike the TEACH Act stipulations, which presume piracy is the most likely outcome of allowing access to learning materials, the CSM guidelines proceed from a commitment to learning and richness of content as values to be respected and encouraged within the allowable limitations of legitimate copyright holders’ concerns — particularly those for whom the educational market is a primary motivation.