The Future of Fair Use
Opening slide
Steve Anderson
USC School of Cinematic Arts
sfanders@usc.edu
http://criticalcommons.org
1
IML
USC Institute for Multimedia Literacy
http://iml.usc.edu
2
Imap + Vectors
Vectors Journal
http://vectorsjournal.org
Media Arts & Practice
http://imap.usc.edu
3
Lessig
“Fair Use is not the right to use
copyrighted materials. It’s the
right to hire a lawyer.”
-Lawrence Lessig
4
Jaszi
“We live in a Golden Age of fair
use… (in spite of difficulties) a fair
use renaissance has emerged.”
-Peter Jaszi
5
Berkman
The Digital Learning Challenge: Obstacles to
Educational Uses of Copyrighted Material in the
Digital Age (2006)
Lack of clarity
Digital Rights Management
Impracticality of licensing
Undue gatekeeping
-William Fisher & William McGeveran
Berkman Center for Internet and Society
http://cyber.law.harvard.edu/media/files/copyrightandeducation.html
6
CSM: Copyright confusion
Fear + Misinformation =
Less effective teaching and learning
Lack of innovation
Compromised thinking and communication skills
-Renee Hobbs, Peter Jaszi, Pat Aufderheide
Center for Social Media
http://www.centerforsocialmedia.org
7
Conversations about Fair Use should not be solely the
domain of experts (i.e., lawyers and technologists)
We also need to hear from people who depend on fair use for
everyday cultural practices:
-Educators
-Archivists
-Media makers
-Librarians
-Students
-Fans
8
Polarization of discourse surrounding copyright
Rhetorical
9
Polarization of discourse surrounding copyright
Legal
10
Polarization of discourse surrounding copyright
Technical
11
Polarization of discourse surrounding copyright
Cultural/Educational
12
Polarization of discourse surrounding copyright
Cultural/Educational
13
Polarization of discourse surrounding copyright
Cultural/Educational
14
Polarization of discourse surrounding copyright
Cultural/Educational
15
What’s the problem?
Fear
Confusion
Lack of support
16
MPAA threat letter
MPAA threat letter to every U.S. college and
university President and CIO
17
MPAA digital piracy
18
USC ITS
Technical
19
USC ITS TOS
Technical
20
USC ITS Fair use
21
Risk mgmt vs. avoidance
Risk Management
vs.
Risk Avoidance
22
What’s the solution?
Get informed
Get connected
Get active
23
What’s the solution?
Get informed
Get connected
Get active
Partnership between IT staff, administrators and faculty
regarding legal, technical and pedagogical strategy
24
Three fronts for Fair Use
Legal

Best practices / alternatives
Technical

Open standards
Cultural

Scholarly / Remix
25
Three fronts for Fair Use
Legal

Best practices / alternatives
Technical

Open standards
Cultural

Scholarly / Remix
Need mobilization, coordination and progress in all areas!
26
Legal
Electronic Frontier Foundation
http://www.eff.org
27
Legal
28
University-based intellectual property and technology law clinics
Technical
Open Video Alliance
http://openvideoalliance.org
29
Cultural
Organization for
Transformative Works
http://www.transformativeworks.org
24/7: DIY Video festival
http://video24-7.org
30
Legal & Cultural
Center for Social Media
http://www.centerforsocialmedia.org
31
Legal, Technical & Cultural
Creative Commons
http://creativecommons.org
32
Four Factors in Fair Use
In general, fair use allows people to use copyrighted materials
without authorization for purposes such as “criticism, comment,
news reporting, teaching, scholarship, or research,” so long as
their use qualifies as a “fair use” in light of the four factors set
out in 17 U.S.C. § 107:
1.The purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
2.The nature of the copyrighted work;
3.The amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
4.The effect of the use upon the potential market for or value of
the copyrighted work.
33
Four Factors vs. Best Practices
Fair Use Evaluator
Center for Social Media
http://www.librarycopyright.net/fairuse
http://www.centerforsocialmedia.org
34
Center for Social Media
http://www.centerforsocialmedia.org
35
Digital Millennium Copyright Act (1998)
DMCA: made it illegal to break copy-protection under all
circumstances
In 2010 the Library of Congress expanded its exemptions
to the DMCA’s anti-circumvention provisions to include
educators, non-commercial videomakers as well as film
and media students.
36
Digital Millennium Copyright Act (1998)
DMCA: also created a “safe harbor” for service providers
who do not control the content appearing on their site.
Hence YouTube could become a billion-dollar company
37
Digital Millennium Copyright Act (1998)
DMCA: also created a “safe harbor” for service providers
who do not control the content appearing on their site.
Hence YouTube could become a billion-dollar company
(and Critical Commons could be created)
38
Misconceptions About Fair Use
misconceptions
39
Misconceptions About Fair Use
misconceptions
1.You have to be a lawyer to understand fair use
Consult best practices in fair use or write your own!
40
Misconceptions About Fair Use
misconceptions
1.You have to be a lawyer to understand fair use
Consult best practices in fair use or write your own!
2. Ripping DVDs is always illegal
Media educators and students can rip DVDs for
classroom use
41
Misconceptions About Fair Use
misconceptions
1.You have to be a lawyer to understand fair use
Consult best practices in fair use or write your own!
2. Ripping DVDs is always illegal
Media educators and students can rip DVDs for
classroom use
3. Exercising my fair use rights is a sure way to get sued
Lawsuits for educational fair use are virtually unheard of
42
Misconceptions About Fair Use
Teachable moments
1.You have to be a lawyer to understand fair use
Consult best practices in fair use or write your own!
2. Ripping DVDs is always illegal
Media educators and students can rip DVDs for
classroom use
3. Exercising my fair use rights is a sure way to get sued
Lawsuits for educational fair use are virtually unheard of
Educators should inform students about both copyright
and fair use and challenge them to make intelligent,
ethical decisions
43
Case study
Critical Commons
http://criticalcommons.org
44
MacArthur Foundation: Digital Media & Learning
http://www.macfound.org
45
Searchable, downloadable, user-generated clip library
http://criticalcommons.org
46
Fair use resources and best practices
http://criticalcommons.org
47
Curated lectures and playlists
http://criticalcommons.org
48
Showcase for multimedia scholarship
http://criticalcommons.org
49
Terms of Service
http://criticalcommons.org
50
Deleuze and Cinema | Kara Keeling
http://criticalcommons.org
51
The Transverberation Scene | Sherry Velasco
http://criticalcommons.org
52
Buffy vs. Twilight | Jonathan McIntosh
http://criticalcommons.org
53
Public Education | Curtis Marez
http://criticalcommons.org
54
DOD Nuclear Archive | Hamilton & O’Gorman
http://criticalcommons.org
55
Television Style | Jeremy Butler
http://criticalcommons.org
56
Digital Shakespeare | Katherine Rowe
http://criticalcommons.org
57
Economics of Seinfeld | Linda Ghent
http://criticalcommons.org
58
Infinite Recursion
http://www.infiniterecursion.com.au
Critical Commons Mobile
http://criticalcommons.org
EngageMedia
http://www.engagemedia.org
59