Lessig on Fair Use

I spent the morning catching up on some recent talks by Lawrence Lessig in anticipation of my Critical Commons presentation at the Society for Cinema and Media Studies conference next week. Two excellent illustrated lectures have gone online (and were also amusingly taken down thanks to the automated DMCA trolls from Warner Music Group) in recent weeks: one from Lessig’s address at TEDxNYED last weekend in New York; another from last month’s “Wireside Chat” organized by the Open Video Alliance. USC was a local host of the OVA event, which was broadcast live via the internets from Harvard Law School. The two talks include some duplication of examples, but, in combination, give evidence of a significant shift in Lessig’s thinking about fair use. A few years ago, when we were first conceiving of Critical Commons, Lessig’s negativity about fair use rang loudly in my ears — his oft-repeated statement that “fair use is the right to hire a lawyer” — hardly seemed like a principle worth fighting for, but his preference for the tiered licensing of Creative Commons was of no use to educators wanting to teach with copyrighted media. It was only after a subsequent talk by American University’s Peter Jaszi, the legal mind behind the Center for Social Media’s Best Practices in Fair Use guidelines, that we decided to move forward with the project, focusing on the advocacy and expansion of fair use. Lessig’s current, pro-fair use stance seems to be motivated in part by the fact that court decisions have been weighing heavily and consistently in favor of fair use these days. In his typically erudite fashion and signature style of wryly synchronized keywords and graphics, Lessig celebrates the emergence of remix cultures across the internets, likening it to the kind of shared, non-commercial cultural production that is characteristic of pre-industrial societies. Lessig also links the power of remix to a commitment to free code and free codecs. But in the end his real message was about politics. Attempting to sidestep the polarization of the liberal/conservative binary, Lessig made the case for conservatives as agents of support for common culture; citing the abysmal record of democratic politicians in enacting substantive legislative change. Indeed, Lessig’s key argument was to support political action in congress rather than rely on the courts and to continue to enrich culture via fair use.

Andrew Lowenthal at Open Video Conference

On the first day of the Open Video Alliance conference at NYU Law School, Andrew Lowenthal of EngageMedia led a fascinating discussion on the rise of alternative video sharing platforms in the age of YouTube, advocating the need for free and open source alternatives to corporate-dominated services. In addition to being a founding member of EngageMedia (who are the creators of the Plumi video sharing CMS and the developers of Critical Commons), Lowenthal is the author of “Free Media vs. Free Beer,” an intervention into the free software debates. Lowenthal’s argument for open video platforms seems especially important, given the recent decision by iMeem to stop hosting user-generated video as of June 30, 2009. Prior to this announcement, iMeem had been the hosting service of choice for thousands of fan-vids, a particularly vibrant community of remix video creators, who are now, once again in search of alternative hosting solutions.

Fair Use Day Monday October 27

With fear, uncertainty and misinformation dominating the discourse of copyright and intellectual property, Fair Use has become one of the most vexing issues in today’s academic landscape. This day-long event at USC’s Annenberg Research Park addresses these issues head-on with a series of presentations and discussions with key players in the advancement and redefinition of fair use, coupled with a faculty showcase and hands-on workshops at the Institute for Multimedia Literacy. The goal of this event is to bring clarity to questions of fair use for scholars, students and educators working with copyrighted media for research, teaching and electronic publication.
Visiting presenters include Peter Jaszi, legal architect of the Center for Social Media’s Best Practices in Fair Use guides, Eric Faden, creator of the viral Disney cutup A Fair(y) Use Tale, Eric Steuer, Creative Director of Creative Commons, who brought the world the remixable Wired CD, and Francesca Coppa, co-founder of the Organization for Transformative Works.
We believe this event will facilitate some much-needed discussion of the state of contemporary Fair Use and where we should be setting our sights for the future. The event is free and open to the public. See complete schedule below.

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