Available Online for Free. More work by this artist here. Link courtesy of Wooster Collective.

Fair use is the facet of intellectual property law that allows portions of copyrighted material to be used for criticism and parody and it is a hot button issue in the online content world. For instance major fair use issues that have popped up at YouTube in the last few months include permanently disabling the account of a prolific video film critic and using its ContentID system to remove Warner content after a dispute between the two companies. And in another high profile fair use clash, the AP is suing artist Shepard Fairey over his iconic Barack Obama prints which the AP claims were based on a photo of Obama owned by the AP. According to Fairey and Obama for America, the original print was based on an AP image but when Fairey began to work with the campaign in an official capacity they provided Fairey with a campaign owned photo of Obama to work from. So if two people own similar photos of the President and an artist makes a print from one of them, how do you decide what photo was the inspiration?

I want to highlight a couple helpful resources on fair use law, the Electronic Frontier Foundation’s fair use guide and the Stanford University Copyright and Fair Use Center. The most frustrating thing about fair use is that the burden of proof is on the user. There is no clear criteria for what qualifies as fair use. This allows large conglomerates to easily push around individual artists and critics who do not have the money to fight clostly legal battles even if the individual is clearly using copyrighted material in good faith. As the EFF’s FAQ points out, it is also unclear if fair use is a right or just an acceptable defense against copyright infringement.

What is clear is that the law is not adequately protecting the average citizen’s right to expression, as well as stifling the sharing of art and criticism. What is most frustrating about the current situation is that the current legal situation does not appear to be in anyone’s best interests. Artistic derivative works and criticism do not serve as adequate substitutes for original works so they are not actual threats to original rights holders, in fact they often serve to spark interest in the original works. Thusly, going after critics and artists is not in the long term interest of large conglomerate rights holders. However, legal departments feel like they are serving the short term interests of these conglomerates by bullying and possibly winning settlements. Reform of intellectual property law to catch up with modern technology is going to be a long arduous process. I am curious and excited to see what direction the Obama administration takes us in. Sadly I expect we will have to wait a while given the number of higher priority crises in President Obama’s docket.

• Yesterday’s New York Times ran an article on Google’s ever-expanding book search. I have found Google’s book search to be an amazing tool when doing scholarly work. It is encouraging that they are working with publishers and authors to share profits from ads on book searches.
• China’s government may be upping the ante in their censorship efforts. The Chinese government recently issued a statement condemning major Chinese & international web entities, including Google, for how easily pornography can be accessed online. Google’s policy is to cater search results to specific countries’ laws by monitoring IP addresses (for instance, in several European countries it is unlawful to seek out Nazi related material so Nazi related websites are filtered out of their Google search results). Google has also stated they would prefer countries to lift their content bans to Google making judgments as to what is acceptable within the laws of each nation. Our literary history is filled with fantastical conceptions of Utopian societies (not to mention real-life attempts to create Utopian societies on this Earth). A single society without censorship laws would be an interesting first step.
• Lawrence Lessig argues that FCC regulations should be eliminated to promote technological innovation. I am cheating a bit here, in that it is not Monday’s news but the article is worth your time. While the two domains are vastly different it is interesting to see a respected intellectual in the field of communications press for deregulation as the world suffers through a recession most blame on deregulating the financial markets. At the moment I cannot think of a way this sort of deregulation could cause a global crisis but I suspect the possibility exists.
• Turkey’s government is still in the midst of a longstanding debate over how to handle YouTube in a country where content insulting Turkey’s modern founder Ataturk is illegal. Most recently there was a judicial ruling banning YouTube entirely. Turkey is yet another government facing difficult decisions about censorship laws created in parochial world as we now live in an inescapably international world.
• Facebook has been flagging breast feeding photos for removal. Despite online and offline protests by breast feeding mothers, they have no intent to change their policy. I am surprised by Facebook’s stance on this issue, which is essentially a shrug and a “those are the rules.” Which is a disconcerting, thoughtless, anti-woman response. It does not take an acrobatic reading to see this as Facebook deeming women’s bodies and women’s relationships to their infants as obscene.
• It turns out Israel’s new media campaign to justify its attacks in Gaza is not limited to the IDF’s YouTube channel. The Israeli consulate has a Twitter feed that includes links to news items, quotes and brief comments. The more of this I see coming out of Israel the more comfortable I feel calling it little more than propaganda.
• Benazir Bhutto’s daughter made a hip-hop video tribute to Bhutto, the assassinated former-Pakistani leader, and posted the tribute on YouTube. Is it too distant for me to leave my comments at this is a fascinating way to express one’s grief?
• From NOTCOT: DAYTUM is an odd new information graphics site that aims to visually present data on its users day-to-day lives.

Warner Music recently pulled their artists’ music videos from YouTube after negotiations between the two companies broke down. Warner Music is seeking an increase in the fee they receive when one of their videos is watched on YouTube. There is also rumor that a group of major music labels, including Warner Music, are considering founding their own rival to YouTube. The proposed new site would be similar to Hulu, a partnership between major television networks to offer full programs online with commercials.

It will be interesting to see the direction YouTube chooses as it begins to accrue rivals. Three years ago when YouTube was first becoming popular it was essentially the only site specializing in providing video on demand. Hulu seems to be less of a threat to YouTube because YouTube’s strength is providing brief clips rather than half hour programs. A music video website launched by major music labels would be a real threat to steal some of YouTube’s traffic as music videos are a major chunk of YouTube’s content. It is not wholly unlikely that we will reach a point where most large corporate content providers either provide content on their own websites exclusively or via consortiums like Hulu, at which point the interest in YouTube’s more grassroots content will truly be tested.

I believe YouTube will have staying power even if it loses most of its major corporate content. YouTube will be moving from being the entire online video encyclopedia, to being primarily a site for user generated content. But as we’ve seen users love uploading videos to YouTube and some people have even been able to launch careers that way. I also cannot imagine YouTube losing favor among smaller entities like independent record labels. For smaller entities YouTube’s market dominance is a chance to easily make your work available to a vast audience rather than a threat to your profit margins. I imagine this is what Google envisioned with their purchase of YouTube in 2006, despite some critics’ concern that YouTube would fold or be unprofitable without full corporate support. There was never any reason to believe corporate content providers would stick with YouTube as it became easier and made more business sense to host their own content but it is difficult to envision the entirety of the internet suddenly deciding they no longer want to share videos with each other.