The webcast recording of my presentation to Educause Live! on February 25, 2011 just went online. Although the title of the talk, “The Future of Fair Use” may have been a bit oversold, it was an amazing opportunity to speak on behalf of fair use to hundreds of higher ed professionals nationwide. For those who don’t have an hour to spare, the basic message is that non-specialists (educators, librarians, media makers) can and should contribute directly to the shaping of an assertive, ethical future for fair use. Citing the groundbreaking work done by the Center for Social Media’s best practices guides, the presentation also highlights Critical Commons as a case study of a fair use-enabled platform for promoting digital scholarship, teaching and research. The presentation sparked a lively discussion among the Educause community and a huge spike in traffic to Critical Commons. Thanks to Steve Worona of Educause for giving us this opportunity!
Mobile Commons is a mobile web application designed to provide access to the full contents of the Critical Commons database, allowing users to add voice-over commentaries to media contained in the system and to view media and commentaries via most internet-enabled mobile devices including the iPhone, iPad, Android and most Symbian-based smart phones.
Critical Commons is a research platform and resource for media scholars and educators that launched in Spring 2009 with support from the MacArthur Foundation’s Digital Media and Learning competition. The Critical Commons database contains hundreds of high-resolution video clips and was recently redeveloped to include a mobile application. It is being used widely in support of classroom teaching, electronic publication and as an online space for scholarly research and writing. Along with the Shoah Foundation, the Hemispheric Institute, and the Internet Archive, Critical Commons has been selected as an inaugural partner in the Alliance for Networking Visual Culture, a Mellon-funded initiative in the digital humanities. The goal of Critical Commons is nothing less than a transformation of the way media is used in research and teaching and an expansion of fair use protections for educators across multiple disciplines.
As a recent contributor to the “Hitler meme” genre of detourned video parodies of the movie Downfall, I was inspired by the recent Rocketboom video with Kenyatta Cheese describing the steps to challenge a YouTube takedown. Rocketboom, in turn, was motivated by the recent wave of takedowns ordered by Downfall producers, Constantin Films, which resulted in the removal of hundreds of Downfall parodies, mine included.
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.
On Friday April 16 as part of the HASTAC Grand Challenges and Global Innovations virtual conference, I will be “presenting” (live via pre-recorded video) a project from my class last semester titled “Interactive Experience and World Design: IKEA as ARG” in which graduate students from USC’s Interactive Media program infiltrated an IKEA retail outlet to analyze the spatial and narrative design of the store as part of an Alternate Reality Game experience. The video offers a summary of the course context and project assignment, focusing on the concept of “scripted spaces,” drawn from Norman Klein’s book The Vatican to Vegas. This video also marks the first time I have had content automatically removed from my YouTube account due to the inclusion of copyrighted material. In representing the transmedia context for this project, the video includes clips of television programs, feature films, advertisements and popular music, at least one of which was flagged by YouTube’s copyright-filtering system on behalf of the Fox/News Corp. media conglomerate. I have filed a counter-takedown notice with YouTube in the hopes of having the video reinstated for public viewing, but for now, it is viewable as a Quicktime file or on Vimeo.
The French design firm H5 has been responsible for some of the most remarkable graphics-oriented music videos and short films of the past decade and their Logorama, which won the Academy Award for Best Animated Short Film is no exception. In order to be eligible for the Oscar, Logorama screened briefly in Los Angeles last December as part of the Flux festival and I read about it for the first time on Holly Willis’ Blur+Sharpen blog on KCET. Since fair use does not apply to trademark appropriation, it was hard to imagine how H5 got away with trashing literally hundreds of icons of Euro-American consumer culture. The answer lies in trademark law’s relatively narrow concern with brand identification and prevention of confusion among consumers. Ironically, the very audacity of H5′s appropriation would seem to ensure that no reasonable consumer could believe that Logorama‘s profane, hyperviolent Ronald McDonald was associated in any way with the McDonald’s corporation. Sadly, both H5′s website and the Logorama site include only the opening sequence of the film (less than two minutes of the complete 16 minute short), accompanied by a perky, nostalgic Dean Martin crooning “Good Morning Life” which belies the shooting, earthquakes and general destruction that ensue.
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.
The Center for Social Media (CSM) at American University has released another of its important Codes of Best Practices in Fair Use, this time, as it applies to the historically vexing realm of OpenCourseWare (OCW). Like previous guides focusing on Documentary Film, Media Literacy Education and Online Video, the new OCW guide is unafraid to engage arcane and difficult legal issues, while simultaneously managing to be highly readable and of immediate, practical use by educators seeking to make informed, ethical decisions about fair use.
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.
Today was the last day of hearings on proposed extensions and expansion of exemptions to the Digital Millennium Copyright Act for classroom uses of copyrighted media. The Copyright Office, which grants three-year exemptions to the law, heard four days of testimony regarding a range of proposed exemptions and will issue a decision in October 2009. The exemptions under consideration include an extension of the current dispensation allowed for media studies instructors to break the copy-protection in DVDs. A proposed expansion of the educational exemption would permit students to also break encryption in order to use video clips for the purposes of “video essays” or media analysis and would extend the current exemption to instructors in other disciplines as well. Among the exemptions proposed by the Electronic Frontier Foundation was an allowance for the makers of remix videos to rip media from DVDs in order to create “fan vids.” Complete audio transcripts of the hearings are available online.
Representatives of the copyright and DRM industries expressed little opposition to continuing the current exemption for media studies, but requested narrowing, rather than expanding, the range of circumstances covered. The proposal to extend the exemption to student work proved particularly volatile from the perspective of the MPAA, which voiced its concern that allowing students to break CSS encryption would make it a norm rather than an exception. By far the most amazing event of the hearings came when the MPAA’s Fritz Attaway and Dan Seymour argued that, while the industry agreed that movie clips are an important teaching tool, reasonable alternatives are available that do not require breaking CSS. To prove their point, Seymour showed a video demonstrating a method of creating a compilation of video clips by aiming a camcorder at a flat screen monitor in a darkened room and recording a series of clips in sequence. The video, which has subsequently been circulated online, was met with incredulity and derision by commentators both in the hearing and in online forums. Although they did their best to defend the viability of this method of analogue capture, industry representatives refused to address the less ludicrous alternative of software-based analogue capture using programs such as Snagit or Snapz.
The USC School of Cinematic Arts was mentioned briefly during the testimony by Peter Decherney, who responded to claims by the MPAA that it was in talks with the school to create a specially selected library of clips that would be licensed for use in film studies classes. Even if it were not an absurd proposition pedagogically, this permission-based alternative to the core fair use protection on which media teaching (and Critical Commons) is predicated, however, remains hypothetical and was dismissed as irrelevant to the current exemption hearings. Of particular significance to the work of USC’s Institute for Multimedia Literacy was an impassioned testimony by Renee Hobbs, who spoke on behalf of media literacy educators. Echoing many of the IML’s core commitments to developing analytical sophistication among students who function as both producers and critical consumers of media, Hobbs argued that it was imperative for students to work with audiovisual materials as part of the process of thinking critically about media at every level including K-12 up through higher education. Hobbes closed by quoting Umberto Eco: “The language of the image must be a stimulus for critical reflection not an invitation to hypnosis.”
Jennifer Terry’s Killer Entertainments presents challenges to both designers and users on many levels. How to critically address videos shot by soldiers engaged in combat without sensationalizing, decontextualizing or trivializing them? How to provide access to such a diverse and extensive range of work? How to insert commentary, context and background information while preserving the raw power of the original videos? In response to these challenges, author Jennifer Terry and designer Raegan Kelly developed a rhetoric of connection and accretion which resists linearity and the seductiveness of a single argument illustrated with evidence. Users are led toward no single interpretation; no replacement ideology takes over from that of the Administration’s party line. Indeed the text allows for and even encourages responses based in idiosyncracy and uncertainty. The source material presented here all comes from “the Internet,” but what does that mean? What can it mean? Which of the sites hosting these materials are “real” and which are run by counter-intelligence agencies hoping to track usage patterns among potential dissidents via IP addresses?
Terry’s text also refuses the screen-media convention of text that has been reduced to digestible lexia. The micronarratives, profiles and backstories that make up Terry’s analysis, like the unedited videos themselves, insist on a certain investment of time, thought and connection-making. Curiosity and patience are rewarded with a rare feeling that one is not simply the conduit for one of several predetermined responses being called up by mainstream media or academic commentary. In an age when the Google search engine can claim to return over 6 million references to “iraq war” in “(0.11 seconds),” the issue no longer seems to be gaining access to information so much as knowing what to do when we have it at our fingertips. Part of the power of Terry’s commentary lies in the flat understatement of her text. When she drops raw figures — such as the fact that coalition forces have fired more than 250,000 bullets for every “insurgent” killed in Iraq — the number seems to hang impossibly on the page. The point is not to dramatize, shock or dismay, but to suggest the importance of educating ourselves out of our narrowness of concern. The Iraq war is happening now — with men and women killing and dying in our names whether we like it or not. We owe it to them, at the very least, to watch, read, listen, think, and then decide for ourselves exactly how we intend to act.
“As we spend more of our time staring into the frames of movies, television, computers, hand-held displays — “windows” full of moving images, text, icons, and 3D graphics — how the world is framed may be as important as what is contained within that frame.”
This opening declaration in Anne Friedberg’s new book The Virtual Window: From Alberti to Microsoft, offers a glimpse of what is at stake in her expansive survey of visual culture over the past 500 years. The Virtual Window, published by MIT Press just weeks before the launch of the Vectors “Perception” issue, offers the opportunity to think deeply about the entangled forces that contribute to the evolution of technologies of vision — everything from the etymology of key terms in visual culture to the science of glass manufacturing. Along the way, Friedberg seeks to theorize and historicize vision itself through a variety of critical “lenses,” each of which operates in conjunction with certain technologies at specific moments in time. At first glance, Friedberg’s elegantly crafted written work might not seem like an obvious source for digital reinterpretation. Indeed, it is a rare historian who is willing to subject such exacting scholarship to an interactive format that allows (and even encourages) playfulness, anachronism and surprise.
But the Virtual Window Interactive should not be regarded as a mere translation of the book. Through her collaboration with Erik Loyer, Friedberg uses the interactive format to construct a literal enactment of her critical paradigm of the “split optic,” a form of parallel vision that considers both past and present simultaneously. Through juxtaposition of apertures, contents and avatar-viewers, The Virtual Window Interactive invites us to think critically about the past in light of present sensibilities, while using the past as a vehicle for thinking critically about the present. A genuinely eclectic range of primary source material places Stephen Colbert’s “Green Screen Challenge” on a continuum that includes both Hitchcock and Rembrandt; and there is nothing to prevent a user from viewing a cinemascope film within the aperture of a video iPod, or watching excerpts from I Love Lucy in the frame of a Renaissance era stained glass window.
It is in the nature of interactive projects that you can never really be sure that you have read every word and seen every image. This is especially true of The Virtual Window Interactive, which requires patience and experimentation in order to experience it fully. Certain elements of Friedberg’s text only become available in conjunction with particular combinations of aperture and content, for example, so an assiduous user might discover new elements upon repeated excursions into the project. In addition, many of the media examples in the interactive version are not addressed in the published text, and the project’s database structure allows for the possibility of future addition, updating and revision. This mutability and expansiveness is arguably one of the most powerful aspects of digital publishing, and Vectors is fortunate that Friedberg was willing to risk having her scholarship subjected to potentially playful as well as serious interrogation. What Friedberg and Loyer achieve with The Virtual Window Interactive is a mode of scholarly practice that is experiential, remixable and fluid, perhaps ultimately in ways that exceed the intentions of its creators.
Digital video, circulated among communities, friends and the Internet at large, is becoming one of the primary ways we tell stories about ourselves, our interests, opinions and passions. The videos we find online are as varied as the conversations we have in our everyday lives, but there are also themes, techniques, and shared source materials that tie together diverse genres of DIY video. This two-part documentary video was Produced and Directed by Steve Anderson and Mimi Ito as the culminating event of 24/7: A DIY Video Summit in February 2008.
What is DIY Video? Part I opens with a video telling of the threads and commonalities that have emerged from our viewing of DIY video in different genres. Curated through a collective process involving the curatorial and conference committee for 24/7: A DIY Video Summit, this video traces the “meta” context that frames what we see as a new golden age in DIY video production. The program is organized as segments that feature video and response, the use of common source material, shared topics, and shared techniques in different forms of DIY video.
Part Two of What is DIY Video? features videos that stood out among the thousands that we viewed as part of our curatorial process as the most outstanding and compelling DIY video works. Together, these two programs document and define a moment in the rapid evolution of user-generated video. Both videos are distributed freely online for download and have been widely screened in festivals, conferences and in educational contexts worldwide.
What is DIY Video? is available for viewing/downloading on the 24/7: A DIY Summit website, along with links to many of the projects included in the video.