10 Pushy Questions for Peter Jaszi and Patricia Aufderheide

Q 1: What was the most significant finding to come out of the conference?

Aufderheide: I think the highest takeaway from the conference was a shared belief that [user-generated content] is a vital new free speech space that needs to be both understood and nurtured. But there’s a real danger of it being deformed prematurely by hyper-enforcement of copyright.

Jaszi: There was a shared anxiety, I think, over the risk that attempts to accommodate copyright owners in setting the rules for participatory media could have the effect of destroying or limiting the very big potential of this new type of creativity. Granted there were no content companies there that are not also platform companies, but I was still surprised by the degree of unanimity.

Q 2: How do you carve out the space it needs to develop creatively?

Jaszi: Broadly speaking, it’s important now and going forward to distinguish between the different kinds of things that happen on participatory media platforms. We need to single out those things that are creative—commenting on something, mash-ups, remixings, etc., that pose no real harm to any existing media market—from simply using user-generated content as a default DVR for those who don’t have one.

Q 3: What does that mean in practical terms?

Jaszi: As a practical matter, we who are involved with participatory media ought to be working hard, as an incipient community, to do two things: protect fair use in the participatory media space; and working hard to defend the [Digital Millennium Copyright Act]Section 512 safe harbors for platform providers. Our first agenda ought to be to defend these two sets of existing legal rights to create space for creative development to occur.

Q 4: The Center for Social Media helped spearhead the development of a set of fair-use “best practices” for documentary filmmakers. Would a similar approach work for user-generated content?

Jaszi: The area is so new and there are so many different interests in play that I’m not sure you could ever get everyone in a room and come up with a consensus. But thereare other ways to develop a consensus. It could be done in court, for instance, through best-practices litigation. You could make sure that people who are targets of inappropriate take down notices or inappropriate infringement claims are well defended so that you create good law in the courts. It probably needs to be a compound strategy, where there is ongoing discussion that encourages a consensus, and making sure individuals get the legal support they need.

Q 5: Is there a role for Congress to play, perhaps by bringing some greater clarity to the boundaries of fair use?

Jaszi: The record with involving Congress in matters like this hasn’t been a good one. I think there are substantial risks in tampering with the existing statutory formulation of fair use. One risk is that Congress might re-open the issue and then get it wrong. It’s kind of a sealed space now, as far as the statute is concerned, and I think that’s a good thing. If you opened it up, I think there would be tremendous pressure from content owners to restrict fair use. The dynamism, the flexibility, the openness of the doctrine as it is now is part of its strength.

Q 6: Your study found widespread ignorance about what is and is not a fair use among those actively involved in posting user-generated content. Is there a need for some sort of broad public education campaign on the rules of copyright and the boundaries of fair use?

Aufderheide: One conclusion we came to in the study is that people aren’t confused by ignorance, they’re confused by active mis-education. They’re getting bad advice on copyright, including from their teachers. They’re being told that nearly everything you do with copyrighted material is piracy. We in the communications area, as well as law professors, are working on ways to convey a better sense of the balancing acts involved in copyright. One thing we’d like to do very soon is to develop a map of the landscape of actual practices, to describe what people are actually doing with user-generated content so that we make sure we address the right things.

Q 7: Where is that mis-education coming from?

Jaszi: I think the industry is part of the misapprehension. Not so much by any particular action but by a long communications campaign to convey the idea of nearly everything you do with copyrighted material is theft. But people are also getting that message from authority figures, from their teachers. Grade school teachers, school librarians, filmmaking class teachers, have all been encouraged to convey the message that anything you do with copyright material that isn’t expressly authorized is theft.

Q 8: What should the message be?

Jaszi: If there were one message I’d like to send by some sort of viral mechanism it would be that majority of what they’re doing now is legal. The majority of what you see in the realm of user-generated video falls comfortably and clearly within the historical boundaries of fair use. But right now, there’s the perception that most of what they’re doing is illegal.

Q 9: Why has the content industry been so successful at conveying their preferred message?

Jaszi: They’ve been able, on balance, to win the battle of the metaphors. This is a society built around protection of private property and they’ve been very effective in persuading people that all property is the same. And if you take someone else’s property, that’s theft. But all property is not the same; there are differences. This is not a rejectionist position, by the way. It’s not an anti-copyright position. Copyright is important, and should provide real protection for creators. But users also have rights that are part of the copyright scheme.

Q 10: Is there a way out of the current stand-off, or are we going to keep arguing the point forever?

Jaszi: I have great hope that as a result of these sorts of discussions, the industry will be able to distinguish between creative uses and those that merely substitute for an existing product, and that we encourage one and discourage the other.

Aufderheide: One thing that was clear in our study is that people who are posting [user-generated content] have a strong interest in their own copyright. They’re not anti-copyright, but they have different interests from the traditional media companies. They’re interested in being acknowledged for their work, and don’t want to see it used without attribution. But they don’t necessarily want to prevent its use. We’ve learned, with documentary filmmakers and lots of other creative communities, that there’s a strong sense of pride in the work, and that creators enjoy sharing their work with others. But they want to be credited for what they’ve done.

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