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Fear and wonkery in Las Vegas - January 4, 2008

Media Wonk will be in Las Vegas next week for the Consumer Electronics Show, where he'll be moderating the panel, The True Cost of DRM: What Can't We Do Now? (Monday, 10:30, LVCC, Rm. N254.) Among the panelists will be Professor Patricia  Aufderheide, director of the Center for Social Media at American University, a sometime-Content Agenda contributor and co-author of a new study on user-generated video and fair use. A full copy of the report, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-generated Video, is available here and worth reading.

To compile the report, researchers examined thousands of videos from leading UGC sites, including YouTube, Google Video, Revver, Current, Live Video, MySpace, GodTube, Bebo and Searchles, looking for clips that incorporated clearly copyrighted material. They then sorted those clips into nine categories defined by the manner and purpose of the quotation (e.g. parody and satire, negative or critical commentary, illustration or example, pastiche or collage).

Aufderheide's co-author, AU law professor and copyright expert Peter Jaszi, then performed a provisional analysis of the videos in each category to determine whether, in general, their creators would have reasonable grounds to claim their quotations represented a fair use of the copyrighted material. Although the results of his analysis were mixed, Jaszi concluded that in a large percentage of cases, the uses of copyrighted material in user-generated videos were sufficiently transformative to fit within the established parameters of fair use.

Although Aufderheide and Jaszi don't address the issue in the report, their findings certainly raise questions about proposed filtering systems for UGC sites meant to prevent their use for copyright infringement. If Jaszi's analysis is correct, there is a danger that filters based on fingerprinting could end up fingering clips that would pass fair-use muster.

I'll be posing those questions as part of the panel discussion in Las Vegas.

Also on the panel is Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, who last year helped craft guidelines for developing filters that protect transformative uses of copyrighted material, so it should be an interesting discussion.

The other panelists are Ian Rogers, general manager of Yahoo! Music; Jonathan Lee, VP of business development for MediaDefender and Russ Frackman, a partner at Mitchell Silberberg & Knupp.
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