Here’s a brief breakdown of the contrast between old and new media. In the old media model, each outlet attempts to be independent; an old media outlet employs a cadre of staff reporters, who write stories which are published in print and online. The new media model is in its essence interdependent and interactive; Huffington Post, and similar news sites, employ a lean staff, which does some reporting, but is dependent on the aggregation of other sources in order to be a comprehensive source of news. The centrality of aggregation for news sites like Huffington Post brings up copyright issues. How far can fair use of other news entities’ reporting go?

When the floor was opened for questions, I asked about copyright concerns that may arise from the aggregation method used by the Huffington Post. Huffington suggests that “fair use is not enough” to fully account for this phenomenon. “In a way we are still working out the rules of the road,” she said. About 30% of the Huffington Post’s content is original. The rest is gathered from other sources, many of them old media. In a recent interview with Huffington, Time suggests that the Huffington Post’s rising popularity in comparison with the news sites it sources may lead to some legal battles in the future. “Someone is going to sue the Huffington Post,” says Joshua Benton, director of the Nieman Journalism Lab at Harvard University. “It’s not just about the volume of the content that it appropriates, it’s about the value.” Old media sources are facing deep financial problems, and some may take legal action to stop losing readership for stories they report. It is unclear what the obligations of an aggregator are to the sources it aggregates.

To decrease the Huffington Post’s dependence on aggregation, the website plans to establish a fund for freelance journalists. Freelance journalists would pitch the Huffington Post stories. Having selected a freelance writer to do a story, the Huffington Post would pay for costs related to covering the story and pay the writer for the article. Huffington sees this new reporting model as a response to the rise of citizen journalism in the digital age.

Citizen journalism is considered by some observers as the beginning of the democratization of journalism. In the past, ordinary people were relegated to being mere consumers of products, including the news. Now anyone can contribute to news and reporting and actually shape their societal context. The Huffington Post’s proposed fund would take advantage of this phenomenon. Huffington brought up the case of Mayhill Fowler, a middle-aged amateur reporter who broke the story on Barack Obama’s “bitter” and “clinging to guns” statements during the Democratic primary.

Greenhouse was sympathetic to the principles behind citizen journalism, but placed several pragmatic facts on the table for consideration. Huffington mentioned that Huffington Post reporters have a decent amount of freedom to cover what interests them most, their “passions.” However, Greenhouse pointed out that, for example, in the Metro Section of the New York Times, assigning articles guarantees that everything is covered and nothing is missed. A fixed staff also guarantees a consistent supply of news because the people writing it receive consistent payment and benefit packages. Furthermore, questions from several students reflected the concern that it is difficult to verify the truth and lack of bias in citizen journalism in the absence of confirmation by a trusted news industry authority.

However, it must be observed that using freelance journalists would cut costs, while making use of the valuable skills of citizen reporters. New media sources are not exempt from the fact of limited revenues available to news sources, as society comes to expect the daily news at their fingertips for free. Huffington sees news sources, in the long run, as being “a combination of for profit and not-for profit.” The Huffington Post itself is funded by a combination of ad revenues and venture funding. Some news sites, such as Respublica are entirely not-for-profit. Traditional media sources, which employ more people and have the additional overhead cost of printing a newspaper, suffer even tougher margins. Just today, New York Times slashed wages and laid off 100 employees.

There have been several structural proposals to “save” traditional news coverage. Senator Benjamin Calder of Maryland has recently proposed a bill that would permit news outlets to choose to incorporate as nonprofits. Bruce Ackermann and Ian Ayres have proposed a national endownment for news, which would pay news outlets by the numbers of clicks that they received on their websites daily.

Huffington admits that “we cannot predict” exactly what news outlets will be like several years down the line. However, “what’s certain” is that people are used to getting news for free online, and that models that attempt to make consumers directly pay for access will not succeed. Greenhouse also acknowledged the large staff-based, subscription based model is “economically unsustainable.” She, however, warned of the danger of losing in-depth news analysis in the online quest to get stories up fast. The new media’s practices, if it is not careful, could crowd out in-depth analysis. This is an outcome that both journalists hope to avoid. “I hope, as we move forward, that there will always be a place for the journalism that you did,” Huffington told Greenhouse.

It is worthy of note that the strongest contrast between the two journalists could be found not in their positions, but in their communication styles. JE Master Laurens gave Greenhouse and Huffington the floor for a few remarks at first, then opened to questions. Greenhouse offered an account of her career and opinion on the past and future of journalism in first five minutes, and expanded on the account in her responses to questions. Huffington, by contrast, spoke little about her career or ideological positions during her initial five minutes, using her time instead to ask Greenhouse several questions about an article Greenhouse recently authored. Later on, however, Huffington responded thoughtfully and at length to questions posed by the students at the event. We learned her positions and opinions during the interactive question and answer portion of the talk. Huffington seems to thrive in terms of both imparting and receiving information in the give and take of a conversation. Their approaches, both effective, were somehow paradigmatic of the media forms they represented.

These two women, with their contrasting yet complementary styles and backgrounds, allowed the audience to understand where the news industry has come from, and where it might be headed. It seems like the old media’s dedication to reporting and thorough analysis will join with the new media’s dedication to free distribution, real time interaction, and citizen journalism. This is the only way we can develop a ‘new’ new media that is creditable, democratic, and sustainable in the digital age.

Remixes, as in the particular musical form, are importantly different from mash-ups and sampling. Remixes are reinterpretations of a single song, often quite significant departures from the original work, but nonetheless grounded in that one work. Mash-ups, in contrast, are combinations of multiple songs (though the individual pieces often resemble the originals far more closely than remix versions), and sampling involves the use of small slices of one work in another mostly new work (such as the use of a horns hook from a funk song in a hip-hop song).

The same questions that fill the discourses surrounding free downloads, mash-ups, and sampling apply here. Do remixes increase sales of the originals or undercut them? Do remixes constitute fair use or don’t they? The most important issue, though, is whether or not remixes constitute new or derivative works, which has important implications for whether or not remixers are free to distribute their art.

Self-administered remixes (i.e. artists and/or labels remixing their own songs) have been around for a while. They were thrust into the mainstream by (then-called-)Puff Daddy’s hip-hop label Bad Boy Records in the mid-90’s, who recycled and re-recycled their popular singles with remixes, and proclaim in multiple songs to have in fact “invented the remix.” In the past year, though, this conception of the remix has been challenged.

In the Fall of 2007 British alt rock juggernauts Radiohead made history by self-releasing their new album In Rainbows on a “pay-what-you-want” scale that started at “free.” They followed up this stunt, which was hugely successful — interestingly leading to far more legal sales of the record than of their previous record, by encouraging remixes of their work through selling the “stems” of one of their songs (“Nude”) for $0.99 a piece on iTunes. Aspiring remixers could purchase these stems, which are the individual main components of a song (in this example: vocals, guitars/synths, drums/percussion, string/fx), and remix them for their own pleasure, or to submit to a Radiohead-sponsored contest. This project led to the song, Nude, abruptly jumping up to #37 on the Billboard Hot 100 singles charts. It was so successful that they decided to sell the stems of another song of their album (“Reckoner”) in the same way.

The terms and conditions of Radiohead’s competition, though, are a little unsettling (terms). They specify that any remix submitted to the contest (or not, for that matter) is wholly owned by Radiohead’s US distributors, publishing company, and the band, even though Radiohead self-released this album. Despite Radiohead’s apparent progressiveness, their remixers fall into the same quagmire facing all other remixers: should people that push the boundaries of remixing to create something profoundly new be rewarded with the basic freedom to distribute their work?

Californian pop-rockers Third Eye Blind took notice of Radiohead’s experiment, and are currently engaged in a similar project. They’ve offered two tracks of their upcoming album Ursa Major, before the album is released, to be remixed by fans. It will be interesting to see whether or not this ploy increases the exposure for, and ultimately the sales of their new record when it is released this spring.

As remixing, both band-sanctioned and not, has spread throughout the internet, many websites have popped up to service this growing community. One such website is CC Mixter, which enables (and encourages) people to remix music under non-commercial Creative Commons licenses. In the FAQ’s section of the site, though, the webmasters are quick to point out that posting remixes under CC licenses on the site doesn’t necessary grant the remixers any distribution rights to their works. This is, from a common-sense perspective, a little perplexing, when you actually listen the remixes, many of which are near-unrecognizable from their original sources, and in many ways far more “transformative” than many mash-up and sample uses (to borrow a term made famous by the 1988 Campbell v. Acuff-Rose Music Supreme Court ruling that a parody of Roy Orbinson song “Oh, Pretty Women” was indeed “fair use” and did not violate copyright law, even despite of its commercial use, because of its “transformativeness“).

Artists encouraging the remixing of their own content is obviously uncontroversial. The implications, though, are. Ultimately, I think the only long-term solution is to redefine copyright law and fair use to fit the realities of the 21st century. In the meantime, however, does Radiohead’s success point to a potential solution for the music industry, not only for curtailing unsanctioned remixes, but also for dampening the similar supposed threats of mash-ups, peer-to-peer file sharing, and illicit sampling:

If you can’t beat ‘em, join ‘em?

The technological capacity to remix music is so readily available and user-friendly that making mash-ups is like making collages; in fact, it might be easier.  To make a collage, I need to physically get some scissors, glue, paper and magazines.  To make a remix, I just have to turn on my laptop; with some FOSS software and my iTunes library, I can create “music.”  Fill-in-the-blank forms make it equally easy to get a Creative Commons license for my deadly one-two punch combo of The Muppets and Tupac.  While various legal authorities might not agree that this is Fair Use, I’ve got some form of intent covered, right?  I can then post it on a music sharing website, upload it to my blog, and make it available in a P2P network.  In ten minutes, I can create an (ostensibly) original work, license it, and make it available to literally millions of people around the world.

Remixing is easy, popular, entertaining and essentially free.  I understand that changes to fundamental structure of the internet could limit the online exchange of remixed works (meaning some technical filter, e.g. DRM, to catch/stop transmission of remixed works) and that aggressively pursued copyright litigation could limit the unauthorized large-scale distribution of these works as well.  That being said, it’s hard to apply old regulations to new formats.  Current copyright law is outdated, overwhelmed, and unpopular with much of the consumer base to which its supporters cater.  If, say, Warner Music Group were to sue Girl Talk, then their corporate high horse might very well have its legs cut out from under it. As unlikely as this seems, a precedent of sorts has recently been set.  Abkco Music, which owns the rights to a Rolling Stones song that Lil Wayne (arguably) used in his recent album, pressured Wayne’s Cash Money Records label so much that the track was “pulled” from Tha Carter III.

A recent Georgia Tech study about JumpStart (described as an “online video sharing, editing, and remixing community”) scrutinized the online environment, and concluded that, when the property is intellectual and the goods digital, possession no longer seems like 9/10 of the law.   Their findings observe that the concepts of authority and authorship have been transformed alongside digital media, and have become relative within online communities as opposed to general within the broader spectrum of public space (and cyberspace).  It’s almost like a microgovernment.  Without clear definitions of authorship and a well-defined chain of authority, it seems like anything goes.  The A.P. can even demand that bloggers take down 39-word snippets from their critical pieces online (though, in all fairness, they did invite quite a backlash and are now “rethinking” the decision to make a fuss…and it’s kind of old news).

I don’t think remix and its consequent mass digital distribution can be controlled, especially when the collage-bit suppliers are sending off mixed signals.  Some artists ask for their work to be remixed, some are indifferent, some demand royalties for the use of their original pieces in derivative works.  When Le Tigre says “yes” and Metallica says “no,” we get an additional layer of complication on top of an already challenging question.  Websites like http://funkyremixes.com/ provide and promote remixes of music from bands that give the thumbs-up, and blurs the Y/N line even further.

I feel like I’m parroting Barlow by criticizing the current system and not offering an alternative, but I don’t really have one.  The warpspeed pace of technological development and commercial application is so far ahead of the sluggish legal system that we can’t possibly try to patch up today’s rules, which really evolved in yesterday’s social/technological environment, enough to address tomorrow’s clever loophole-finders.  We need a more open system of regulation that allows college kids to keep wasting time making bad music, permits fantastic mash-ups to be played on the radio, and rewards creative minds for their original works.

Under the DMCA, 512(g)(2), the alleged infringer has the opportunity to issue a counter claim to the copyright owner disputing copyright infringement allegations. The copyright owner would have 10 business days to respond (most likely by a lawsuit) or else the work could be reposted.

What makes this controversial is that Mr. Lee’s work could have been potentially considered fair use. Using the rubric found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code), fair use is determined by:

1. The purpose of the use (whether it is for commercial or nonprofit use)

2. The nature of the work (facts and ideas are not a part of the copyright)

3. Amount used from the original work (side note: de minimis defense: mixed results- successful in Bridgeport, but not so much in Air Pirates, which is a really interesting case featuring counter-culture Disney characters)

4. Effect on the marketplace for the copyrighted

Watch the “Disney” primer to fair use. It’s pretty awesome. If you want to see the full video (not just the fair use section) click here.

While there are those like Professor Michael Geist who exonerate Youtube for merely following the DMCA or others who claim it is impossible for Youtube to manage careful analysis of the thousands of take down notices it receives, such practices remain questionable. For the sake of convenience and preempting possible legal quagmires, Youtube errs on the side of silencing speech rather than preserving it. The situation becomes more controversial when the video commentary is political as was the case during the recent presidential campaign. Numerous videos received DMCA notices from networks such as NBC for having very short 1-2 minute clips of interviews with the presidential candidates and Youtube removed these videos without hesistation. This wasn’t limited solely to independent, albeit partisan commentators, but also the presidential campaigns too.

In all fairness, Youtube does have a set procedure to enable counter notices. Yet, the most troubling aspect of it is the procedure was not designed to ensure swift and positive action. So, even if Mr. Lee had the chance to dispute Youtube’s decision to remove his videos from the site, his chances of regaining his account and videos on the site are pretty slim. To demonstrate this point, Youtube user and blogger, Matt Zoller Seitz, uploaded a few edited movie clips onto the site and as expected, received a takedown notice almost immediately. Without hesitation, Seitz filed his counter notice with Youtube to have the video reinstated. His result: vague emails, unresolved, circuitous phone calls, and videos that remained off of Youtube even though he had his video checked for a plausible fair use claim.

Going to back to Professor Geist, Youtube’s actions make sense in terms of protecting itself.  From Youtube’s perspective, the danger is in the financial might of many copyright holders (most who are large corporations). The potential cost for allowing contested videos on its website is a costly legal battle (whether with merit or not, it can be used to hurt Youtube) that has little tangible gain for the company. Winning the lawsuit would only serve to further incense some copyright holders to pursue even more restrictive regulations on Youtube.

In the end, Youtube remains one of the most open forums for speech–including clearly infringing works such as ripped DVDs–but it is important that Youtube balance its desire to be in compliance with the law while taking into account legitimate exceptions. As remix culture continues to expand in our society, fair use becomes an increasingly important issue that we cannot ignore and allow to weaken as a defensible means of expression.

Picture by Myles! on flickr

Girl Talk. Mash-up artist extraordinaire. I had the privilege of seeing him live three or four months ago up at Trinity. It was awesome. He even came down off stage and pushed me! (In the good, dancey sorta way.)

Someone asked in my Intellectual Property class the other week why the hell Girl Talk hasn’t been sued. I was kinda wondering the same thing. There are a couple theories–the record industry doesn’t want the bad rep of causing the downfall of a guy with such a huge fanbase, etc. etc. Really, I don’t think anyone knows why he hasn’t been sued.

But we should step back a second and ask ourselves: Can he be sued at all in the first place?

In his latest album, Feed the Animals, Greg Gillis–Girl Talk’s real name–fluidly mixed and seamed together hundreds of samples to create a really impressive, amazing piece of music. The defenders of current copyright law claim you cannot use others’ creative works to create your own. Wrong. Gillis is a musician.

Besides his artistic nature, his work may even be perfectly legal. When I went to the website to download Feed the Animals, I was surprised it was licensed under a Creative Commons Attribution-Noncommercial license. How can he license something when it’s made fully up of other works? Well, he claims Fair Use.

(Before I go on, I would like to let you know that I’m reading up on Fair Use right now, and I may come back to edit this post. Or post another post. We’ll see!)

Fair Use is kinda cool, but kinda ambiguous at the same time. From what I’ve experienced, copyright law is messy, and people mainly argue whether or not a supposed copyright infringement falls under Fair Use or not. Fair Use basically says that, under certain circumstances, people can sometimes use some of another person’s copyrighted work sometimes. Sometimes. Depending. On stuff. This is why lawyers get paid a lot.

Well, this is what the law says about Fair Use.

US Code (via Cornell Law)

Title 17 § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

First of all, I’m not sure why they use words like “such as.” This seems to unnecessarily confuse things. What would Girl Talk’s album fall under? Well, none really. Which is why they include the following:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Girl Talk’s album is out there for an artistic purpose, but one that is somewhat commercial in nature. As in, the album is out there for free, but you can purchase the album, you can purchase higher quality files, and you can purchase the physical CD. Then again, I’m not sure if this really affects whether or not his works are copyright infringements. See (4) for more!

(2) the nature of the copyrighted work;

The copyrighted works are songs. I’m pretty sure that’s what this means. Though that seems very superficial. Someone correct me on this if I’m wrong.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is Girl Talk’s main defense, I think. His samples are short, and he reworks them enough to make them unique (yet still recognizable). Some of his samples are as short as a couple seconds long, which he feels constitutes fair use. It’s like taking a couple notes someone has played and putting them in your own song… except taking that a little further. You’re taking the actual recording that someone has made.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is an interesting clause. It seems to be the antithesis of what Lessig wants with a remix culture–if you can add value to a work, then more power to you. This clause takes into account, though, whether the use of someone else’s work diminishes the original copyright holder’s market. This is where Gillis’ defense #2 comes in: He claims he’s pretty much advertising, as noted in this video from the blog RyanIsHungry. He says:

I may sample James Taylor for twenty seconds on my album. No one is buying my album because they want to hear that James Taylor song instead of James Taylor’s thing. There is hundreds, maybe thousands of kids, who have emailed me being like ‘What’s that sample?’ Fifteen seconds on the track 3 of Night Ripper, and it’s like ‘That’s James Taylor’ and they’re going to go download that song and they may end up buying that album.

And it’s pretty true too. I pretty much agree that this album has no impact on the market of other albums or songs. And if it does, it is, if anything, positive.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

I’m not sure what this means. Oh well.

Meanwhile, we come to my situation. In a previous post, I put up an unfinished mash-up I made. After uploading it, I went to the Creative Commons website and licensed it! Then I immediately took the license down, because I was pretty sure what I did at the time was copyright infringement.

And, to tell you the truth, I still think it may be. I basically kept one song the same, spliced up another song, and put them together. The sample isn’t short, and I didn’t really alter it to any extreme. But my intention was… well… just for fun. And I don’t think I’m taking away from the market share of Justice or Carl Orff (died 1982). But still. I was inspired to just license the work anyways, but something just doesn’t feel right.
But really. Shouldn’t I be able to license that? In my ideal, copyleft, remix-encouraging, free culture of the future, yes. But in the real world, this day and age… well, maybe.

-Adi