Law
Part V explores the connection between the law and content on social media.
Remix, Copyright, and the Creative Commons
In "Remix: How Creativity Is Being Strangled by the Law," a talk originally given in 2008, Lawrence Lessig (2012) argued that remix culture, or reading/writing/creating activity that produces a new cultural text in part by using other creators' texts, is at odds with copyright law. As he explained, this is "problem number one: the law is fundamentally out of sync with the technology" (p. 161). Lessig explained that copyright law deems remix activity to be illegal when the texts used are protected by copyright law, but "the platform from which we get access to our culture has changed," and the Internet now allows the ability to remix such that copyright law "needs an update" (p. 161).
The second problem that Lessig identified is with peer-to-peer file sharing. Again, Lessig argued that the illegality of downloading copies of files that are protected by copyright does not deter this activity (p. 161). Lessig argued for two changes to the law. First, he argued that copyright law must take into account copying versus remixing and we need to focus on regulating the former rather than the latter (p. 164). The second deals with peer-to-peer file sharing: Lessig argued for a way to maintain Internet platforms but pay artists through "compulsory licenses or the voluntary collective license" (p. 165). On top of this, he argued for continued participation in Creative Commons licenses for digital texts, a program which Lessig was involved in creating. Lessig stated that "[t]his is a way to say to creators, 'We respect the creativity you have produced. We give you a freedom to express that respect to others'" (p. 166). Through advocacy for Creative Commons and the changes to copyright law suggested above, Lessig argued that the prohibitive nature of the current copyright law could be brought into alignment with the creativity of today's youth (p. 168).
"Clearance Culture" Offline to "Notice-and-Takedown" Online
In "Your Intermediary Is Your Destiny," Fred Von Lohmann (2012) compared how copyright law affects the offline versus online intermediaries of video content, such as a television network (offline) versus YouTube (online) (p. 170–171). The former is subjected to "a 'clearance culture'—the expectation that express permission will have been obtained for every copyrighted work that appears in a video" (p. 170). The latter is subject to a "notice-and-takedown" rule, which Von Lohmann described as "an 'upload first, ask questions later' approach to video creators" (p. 171). Rather than receiving clearances with legal representation, video creators on YouTube can upload and wait for any complaint about copyright enfringement, or notice-and-takedown. It is also a much cheaper mechanism for a copyright holder to notify without lawsuit, and a video creator to respond to a notice without litigation (p. 176). Von Lohmann concluded that while in online culture much education is required by both parties as to the copyright law, it still lets videos "reach global audiences in ways that were never before possible" (p. 176). The number of YouTube videos in existence reflects Von Lohmann's sentiments here.
Creative Commons versus Free Software
In "On the Fungibility and Necessity of Cultural Freedom," Fred Benenson (2012) addressed the history and cultural differences between the Creative Commons and Free Software movements, arguing that there is a "core confusion" about an opposition between the two, and that this "confusion can be mitigated if we acknowledge the fundamental differences between cultural and utilitarian works" (p. 178). Benenson named a "fundamentalist perspective of user-generated utopianism," a sub-set of Creative Commons license advocates who state that "all culture . . . should be able to be peer produced and should be licensed, released, and distributed in ways that facilitate derivates and sharing" (p. 181). The Creative Commons licenses were intended for cultural products, not software, which could utilize the GPL, or General Public License (p. 181). What Benenson argued is that there should be a differentiation between fungible and non-fungible works, and that while "hammers, operating systems, and other tools are prime examples of fungible objects [utilitarian works], art provides us with some interesting examples of nonfungible objects [cultural works]" (183). Where user-generated optimism fails, according to Benenson, is in its belief that all cultural objects are fungible (p. 184). Benenson ultimately argued that he is not in opposition to remix culture, but that not all cultural objects are fungible in the same manner as tools, and that "if we succeed in convincing creators that their works are no different from their tools, we might end up disincentivizing them to create in the first place" (p. 185). This position, in contrast to the Lessig piece above, offers the reader a deeper look into the complexities of remix culture and copyright law.
Three Case Studies
The book's editor, Michael Mandiberg (2012), in "Giving Things Away Is Hard Work: Three Creative Commons Case Studies," used three case studies of design projects to provide a glimpse into how the Creative Commons licensing program is operating in practice.
(1) Bright Idea Shade: The author and a partner created a laser-cut lampshade for compact fluorescent bulbs. They made one, then made a video of it. As Mandiberg discussed: "[t]hrough our Attribution-ShareAlike license (CC BY-SA) and our text in the video, we made it clear that we expected no money. We just wanted someone to make it" (p. 192). But no one did.
(2) Textbook: The author (with a co-author) wrote a textbook "that integrates Bauhaus pedagogy and art-historical examples into a software-focused design primer" (p. 193). Mandiberg discussed some strategy decisions that differed from the first case study. They proposed the book to a publisher, translated the book to other applications through partnerships, and wrote it on a wiki with a Creative Commons license. The book had success in being shared and given away, and the author credited this success to these collaborative strategies early on, as well as to the fact that this was not a physical object in the same manner as the Bright Idea Shade that they wanted someone to make (p. 195).
(3) Bright Bike: Similar to Case Study 1, Mandiberg covered his bike in black retroreflective vinyl for safety, then made a video of this under the Creative Commons license. Mandiberg (2012) argued that this project had some success in "giving things away" because he partnered with a supplier who pre-cut the tape for sale—sustaining the project by shipping orders to bike shops—and has seen retailers and users who have used the tape in creative new ways (p. 196).
Mandiberg's essay is a lighthearted take on a theme explored in many previous essays: It is simply hard to give things away when so many still focus on the notion of ownership. While it is impossible to discuss the legalities of social media sharing without reading Lessig, I also appreciated the juxtaposition of Mandiberg's personal narratives to provide some context from the perspective of a designer/maker trying to put into practice that which Lessig espouses.
