Friday, June 01, 2007

I've decided to start a new post for the breakout sessions. I'm at the Agenda for Fair Use session right now (and my colleague Dave is at the University and the Library session, so I might update with anything he discovers there later).


This room is packed (likely because one of the other breakout sessions was canceled, as well as the fact). Great variety of folks here -- faculty members, writers, artists, lawyers, corporate folks (the chief privacy officer of Facebook, an NBC/Universal officer, the gen council for Sundance Channel, etc), others (someone from the Chilling Effects Clearninghouse, etc.). Nice range of stakeholders here as well. Interestingly, only one person actively identified themselves as a blogger. I suspect that there are quite a few more here.

(And, in fairness, since this is about Fair Use in the context of University, I think most folks presented their credentials in the academic context).

Documentary filmmakers on copyright (pdf here). These are both copyright owners and folks who can benefit by fair use of other people's work, therefore they were forced to make some tough choices. "Clearance Culture" -- the need to clear everything they film (a family sings "Happy birthday" on film spontaneously; should that require clearance?). What about when using clips as a critique (criticizing Fox news, or showing newspaper headlines)? Most feel that these are okay, and used these to set best practices for fair use.

(An Aside: As always, all Fair Use and Best Practices discussions are inherently crippled by the lack of solid legal definitions and any case law). Statement of Best Practices, however, has been accepted by PBS, IFC, and HBO. Insurers are baffled by Fair Use, but can use the Statement of Best Practices to help vet these items.

None of the films made has been challenged (showing strength of the best practice); the guy who made "This Film is Not Yet Rated" was hoping for at least one Cease-and-Desist letter to put on the DVD. :-)

Alex Kozinsky was just mentioned as being very in favor of this.

Breaking this model out to academia: Teachers, librarians, media literacy practitioners, etc. can work to try to build practice models along these lines.

Reminder: Fair use is often used by pirates and others to rationalize copying entire books, sharing movies, etc. Full use does not apply.

New issue is the architecture: showing a movie in the classroom vs streaming it online.

Good point: Does DMCA trump fair use by criminalizing the act of accessing the data?

(My take: Yes, and that's one more reason that the DMCA needs to be dumped)

(Aside: MIT OpenCourseware isn't working with fair use, so no pop culture courses are online)

(time for small-group discussions. More later.)

Discussion group notes:

(Concerns and questions brought up by each six-person group)

1. Concern: Leaking of proper fair use material (video clip in a course, then stolen and shared by a student). Where does the responsibility to protect this lie?

2. Legal Council clamping down on student file sharing. Puts responsibility on students and faculty to set permissions.

3. Rights of creators and obligations creators have to society as a whole (Use Creative Commons, Free Software Foundation).

4. Difference between in-class and out-of-class use of copyright-protected material.

5. "How do you define wall?" When referring to lack of copyright violations within walls of classroom.

6. Tech creep: Licenses and laws might make it okay to share on a current cell phone network, but not a future one.

7. Tech Creep 2: Record an episode of Nova and show in the classroom: Fine. Digitize an episode of Nova, students watch it online. What if they share it?

8. Pressure to put stuff online (from schools, also peer and student-driven pressure).

9. Need to educate faculty about what is actually fair use.

10. Unwillingness by some students to accept distinction between what's educational/fair use and what's not.

11. Limited license issues. Software or other stuff taken beyond the limit of what a copyright holder has authorized.

(Aside: I only just noticed that this classroom, which has plugs for laptops built into every table and a very strong wireless signal also has an old-fashioned chalk-based blackboard instead of a whiteboard or a smart board).

12. When does TEACH act apply?

13. Limitations of Creative Commons licenses for what one group wanted to do (the "no deriv work" restriction -- does fair use still trump it?). Flip-side: What's the value of specifying "zones of safe harbor" using CC or other license (which thus also explicitly bans other uses).

14. Does (should) the shift in platform (internet vs classroom) change fair use, copyright, etc?

Final notes:

"It's Educational" does not mean "Fair Use." Period. NO presumption of fair use for education. But copyright law does tend to give more latitude to transformative uses, but much of educational use is verbatim.

Follow-up -- need to codify educational and fair use. How can we do it? Copyright cannot solve for social inequality.

Good faith efforts in education do prevent statutory damages (but are hard to define).

It's not how copyright law can protect, it's how we can protect information and media from copyright law. GPL, CC both are aiming to this.

Lots more copyright thoughts that I'll be writing up later. First session is over. Lunchtime!


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