Writing Sample

New Media Content and Criticism
Mid-Term Paper
Rebecca Mundschenk
4 March 2010
 
Culture is all around us, part of our daily lives, nearly impossible to escape from. Our culture defines our society, leaves its mark on our history, and provides inspiration for people to make new culture for the current time, to start the process of creating history and making their mark over. No creative work of art is ever 100% original; arguably, everything is inspired by something else—artists are inspired by the musicians they listened to, aspiring to be like; painters study the methods of classic artists’ works; and directors analyze angles and shots in movies.

Some artists feel that paying homage to those who have come before them is the least they can do. The only problem with this is that naturally, these works are copyrighted, and getting permission to use them is a thorny issue at best most times. Even works that appear to be public domain, or that have expired copyright are usually quick to be claimed by someone or some company if there is suddenly money to be made in licensing. With all the hoops to jump through to legally obtain the rights for a creative piece, it is increasingly costly to sample even a short segment of a song or video. One argument that could be made for protecting copyrighted material is that is essential for preserving our culture; those literary, audio, and video works that have become an essential part of our self-definition as a society—The Lord of the Rings, The Beatles, Citizen Kane.

At the same time, it would be hard to argue the influence that those works have had on our culture. How many people were inspired to write their own fantasies, picked up a guitar, or experimented with a video camera because of the above examples? How could you prevent an artist from subliminally using other copyrighted content to create their own original works? It seems that the competitive and complimentary spirit that has run through the music, film, and television industry was built off of trying to create, imitate, and ameliorate what others were doing.

These kinds of copyright issues are what Lawrence Lessig has devoted years of his career to: analyzing current copyright laws, how those laws work (or don’t work), and what can be done to change them in a way that benefits the original copyright holder and the creator wishing to use the copyrighted material. He explains this in detail in his book Remix, which focuses on embracing a culture where elements of previous culture are shared and new creations are made; combining profit with a sharing economy; what needs to be done to change copyright law to benefit the copyright holder and a user of that material; and ending the prosecution of those who use or copy copyrighted material.

Lessig is no stranger to issues of copyright, having written five books either focusing on copyright issues, or featuring copyright issues in relation to other issues in the book. However, even though I have access to four of his books (which he’s made available through a Creative Commons license on his website), I’ll focus more on Remix, since it primarily deals with issues of copyright (and since we discussed it in class). He discusses three main sections in the book: cultures, economies, and the future (reforming law and people in relation to copyright law. Out of those three, I feel that for the purposes of this paper, and in relation to my other research, I think it is most important to focus mostly on cultural creations (both past and current), but I will also touch briefly on aspects of social media used to share new cultural creations, how to create and distribute those creations, and the future of protecting digital creations online.

To start with, a simple definition of culture as it relates to the subject: “the behaviors and beliefs characteristic of a particular social, ethnic, or age group” (dictionary.reference.com). Relating to this discussion, culture is usually something creative that is released into the public, with the creator holding the rights to that work, or at least they should hold the rights to their work. One example of this is the story of Grace Guggenheim, who wanted to restore and rerelease the documentaries that her father had directed or produced, which was well over one hundred total. The issue that she ran into in doing so was twofold: “The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution” (Lessig, “For the Love of Culture”).

Since Guggenheim was working with documentaries, she was really working with some of the first examples of rewrite culture (RW culture): where citizens “‘read’ their culture by listening to it or by reading representations of it” (Lessig, 28). In the case of documentaries, a director or producer may get an idea based on something previously seen or written, or based on events that have occurred. The next step in RW culture is “add[ing] to the culture they read by creating and re-creating the culture around them” (Ibid). So a documentary film maker would gather pictures, video, audio, transcripts, books, and any other relevant material about the subject that they wished to present. In this way, they rewrote culture based on what had been previously created, but this creation does not take away from the original creations—it adds to it by offering a different perspective that might not have been explored or apparent in the original works.

This process of creating documentaries, or any other creative works, created a big problem for Guggenheim when she set out to re-release her father’s works: while he had obtained copyright permission originally to make the film, the amount of time he had rights to re-distribute those original works were not very long. When creators go back to the original copyright holders to re-obtain copyright permissions, they are usually at the mercy of those holders, who then see an opportunity to make more money off their creations at the expense of the creator of the new media. Lessig explains why this is so troubling:

“The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which—like lead in gasoline—were introduced without any public recognition of their inevitable toxicity” (Lessig, “For the Love of Culture”).

Not only can it be costly to track down copyright holders, but it can be even difficult to find the copyright holders to obtain permission. A group of librarians at Carnegie Mellon University were trying to digitize a collection of out of print books, to preserve that culture for future generations, but they ran into a large problem: “….they were unable to find more than 20 percent of the rights holders, despite persistent efforts” (Varian). This is especially problematic since the copyright laws that have been revised numerous times over the years extend the amount of time that a copyright holder has rights to their content. The 1998 Copyright Term Extension Act “expanded copyright protection for intellectual property another 20 years….which protects corporate copyrights for 95 years, and individual copyright for 70 years after the creator’s death” (Rothstein). If an author created a work that is long out of print, and might have died 50 years ago, there’s still another 20 years that the work is under copyright. For that matter, some descendants of the original copyright holder may not be aware that they do hold those copyrights, or they might be even less inclined to grant permission to use the works because of the possibility to generate income.

Grace Guggenheim ran into these issues, but she was not deterred: she took on the enormous job of tracking down every copyright holder of all the media her father had used in her films to re-obtain permission for that media. Not only could this have been an expensive undertaking (figures weren’t noted in the article), but the process of doing this for the roughly one hundred or so films has taken her eight years, and she actually has not finished the job—there are still around ten more films to obtain rights to. Had she not gone to all of the trouble of painstakingly contacting every copyright holder, what would have happened to her father’s works? Would they have been doomed to the same fate as the works Lessig mentions above, left to decompose on a very few scattered library shelves, unseen by the public that they were created for? It’s hard to say for sure, but certainly many other works, not just documentaries do have that very fate. By allowing this to happen because of copyright restrictions, those restrictions protecting the original culture are killing the new culture. Ultimately, those of us in the public that consume culture lose, because we are not exposed to that which is lost to us, something that could have been inspiring to others, that could inspire a new creation that is just as culturally valuable.

One aspect of culture that as of yet, doesn’t seem to have been considered for preservation, is the culture that is created online. This doesn’t necessarily mean traditional creations such as music, video, or stories, but the content created through sites such as Facebook, MySpace, Twitter, and email. It is possible to archive some of this content, but how can your permanently archive this content and make it available to everyone? Granted, some of that information may not be wise to release publicly, such as interpersonal emails or message conversations via any sort of messenger program. But as Victor Keegan says, “it is reckoned that the average life expectancy of a website is less than 75 days, and that at least 10% of UK websites are lost or replaced with new material every six months”. The Internet Archive is one seemingly obvious solution, since it takes a virtual snapshot of a website over time, but even that isn’t foolproof—it can’t possible catch every update, every change made to a website. The copyright laws of the UK make it especially impossible to catalog these changes, since permission must be obtained every time those changes are archived. This is time consuming, and “fewer than 25% of the bodies approached by the [British Library] for permissions even bothered to reply” (Keegan). With this low response, how can digital culture be preserved?

Another issue with digital preservation is the changing technology. Formats for saving and creating digital works have changed drastically over the years—giant computer tapes, large floppy diskettes, smaller floppy diskettes, CD-ROMs, DVD-ROM’s, USB flash drives, on and on. As the equipment to read these materials ages, becomes harder to find, and eventually breaks down, these digital files will eventually “degrade” much as paper files do. Changing technology and the gain and loss of websites also presents another archiving problem: what’s to say that content created on Twitter, Blogger, Facebook, or any other will be there in a year, five years, or ten years? If the site folds, what happens to that content? Similarly, since the content is generated so quickly, and goes through a quick cycle of relevancy, what’s to say that they might even be archived at all? As Keegan puts it,

“Young people may, or more likely may not, worry that things they say on social networks such as Facebook or Twitter may come back to haunt them but the bigger worry is that in the longer term it won’t be there at all as digital dynasties rise and fall. Outpourings on Twitter provide an amazing record of what [sic] people are doing and even thinking, but they are already history before the end of the day. Does anyone seriously think they will still be there a century later?”

Keegan raises an interesting point—while there is a focus on preserving and protecting the copyright of content that makes up more tangible culture—books, music, movies, television shows, etc.—there doesn’t seem to be a similar emphasis on preserving our digital culture. So much of our culture has come to be created and defined by these technologies and tools online, how can we preserve that for future generations, as a record of our current history? Besides the Internet Archive, there is also the Internet Wayback Machine that serves as an archive of the Internet, but they are a not-for-profit site, and what’s to say that they might reach the end of their funding rope at some point in the future? Content online also faces the problem of websites changing hands, as companies are bought, sold, and closed down. Personally, I had a couple of very simple webpages hosted on Geocities, which closed some time ago. Thankfully, I had advance notice of the closing and was able to save an archive of my content, but what if I had not been so fortunate? And if these cultural creations are changing as much as they are, how hard might it be to obtain or prove copyright?

It might not be the way to protect the actual content from being lost, but the Creative Commons allows for others to use, copy, sample, remix, or distribute as long as credit is given to the original author. Perhaps by making use of the Creative Commons, content can be archived, even if it is archived in a different form or as a part of the original work—in the grand scheme of creative works in human history, with so many works lost to time, circumstances, and copyright law, even preserving a part of culture is better than nothing. The Creative Commons also helps to ensure that the original creator has more of a degree of control over how their work is used. Not every creator has to offer their work to be used completely freely; they can determine who can use what and how. For people who want to create new culture from what has come before, utilizing these kinds of works can be somewhat freeing, since there isn’t the problem of trying to obtain copyright or facing legal issues due to copyright.

Even with the average layperson free to distribute their works in this way, there are those who are more well known that feel similarly, even at times when their record companies (in the case of musicians) or publishers (books) don’t share the same philosophy. In 2005, Lessig and musician Jeff Tweedy of Wilco gave a lecture called “Who Owns Culture?” at the New York Public Library, where moderator Steven Johnson “made much of the fact that the discussion was taking place in a library, where much of the Western cultural canon is available free” (Carr).
Lessig and Tweedy both said that “about anybody who owns a modem also owns—or at least has every right to download—culture products” (Carr). It would seem odd for musicians to tell their fans to download music that they created, but Tweedy and his band mates found success by doing just that—their record label dropped them before they were to release an album, so instead of waiting to release it commercially, they released it on their website, then started a tour at their expense. Since the fans had been exposed to the new material, there was excitement created around the music, and they responded by coming out for concerts (which typically generate more revenue for musicians than record sales do). When the album was eventually released on CD, “it sold 57,000 copies in the first week, and went on to sell more than 500,000. Downloading, at least for Wilco, created rather than diminished the appetite for the corporeal version of the work” (Carr).

Lessig has a similar approach when it comes to his works. He makes his books available in PDF form on his website in addition to hard copies available from Amazon and other retailers. One interesting aspect to releasing his books online is that users can rework them in different forms to make them more accessible to all. When his book Free Culture: How Bit Media Uses Technology and the Law to Lock Down Culture and Control Creativity was released, 21 versions of the book were created by users online. Two of them were done by volunteers: “a collective project in streaming audio and another in HTML with handy links that explain details in the text like who Ub Iwerks was” (Sullivan). Certainly it could be argued that Lessig lost money by making free copies available, but because he did, he gained a lot more than he could have financially—he gained more of a following since editions were created that were more accessible to all—the audio version might not have been recorded otherwise, which is useful for the blind. The HTML version would be a great primer to someone new to the concept of copyright issues. By spreading his works, he makes his message heard, and it also speaks to the very issues he was writing about. It might have been seen as almost hypocritical had he not done so.

Even well-known artists and creators of culture run into copyright issues, even when those issues involve their own works. In 1996, the band OK Go made a music video for their song “Here It Goes Again” without informing their record company (EMI), which they then put up on YouTube. The video was low budget, shot in the basement of lead singer Damian Kulash’s sister’s basement, but immediately gained attention because of the uniqueness of the video—the band coordinated a dance on six treadmills, performing feats that seemed crazily impossible otherwise. The video took off and was spread quickly online because it was unique. The problem was that OK Go found that they had broken their own contract by releasing their own creation, since EMI had funded the creation of the song. The video had over a million views, and the song’s popularity brought larger crowds to their concerts, but
“700 shows, one Grammy and nearly three years later, EMI’s ledger had a black number in our column. To the band, ‘Here It Goes Again’ was a successful creative project. To the record company, it was a successful, completely free advertisement” (Kulash).

The band has since released a new album and videos, but EMI has prevented the videos from being embedded on other sites, which means that it is not as easy as it was to share them with others. As Kulash says,

“When EMI disabled the embedding feature, views of our treadmill video dropped 90 percent, from about 10,000 per day to just over 1,000. Our last royalty statement from the label, which covered six months of streams, shows a whopping $27.77 credit to our account.”

In this case, what did EMI really gain by stifling the band’s creativity? If the band only received a little under $28 for six months of video views on YouTube, how much could EMI have made? It isn’t certain, but “news reports say that the labels receive $.004 to $.008 per stream, so the most EMI could have grossed for the streams in question is a little over $5,400” (Kulash). Financially, EMI ends up looking greedy, the band’s creativity is reined in, and ultimately, fans lose the chance to share the music with others, or to have someone share it with them. In the end, no one wins. Had copyright laws been different, the band might not have had any trouble creating content from their own works. It could inspire other bands to get creative with making their own videos. But if EMI and other record labels are willing to bring the hammer down, then video creativity can only be diminished.

Overall, there are many flaws with the current state of copyright in this and other countries. Unfortunately, for large studios, publishers, and record labels, the most important thing in their eyes is the almighty dollar. What they fail to realize is that by stifling creativity and content, it impedes our culture, keeps it from growing and evolvi
g. Kulash sums it up well: “Curbing the viral spread of videos isn’t benefiting the company’s bottom line, or the music it’s there to support. The sooner record companies realize this, the better—though I fear it may already be too late.” Hopefully enough creators of content can try to stop the current state of copyright affairs, or like Kulash says, it may be too late.
 
Bibliography
Carr, David. “Exploring the Right to Share, Mix, and Burn.” The New York Times, April 9, 2005. Retrieved from http://www.nytimes.com/2005/04/09/arts/music/09nypl.html on 26 February 2010.

Keegan, Victor. “Is copyright getting in the way of us preserving our history?” The Guardian, 25 February 2010. Retrieved from
http://www.guardian.co.uk/technology/2010/feb/25/digital-copyright-british-library on 26 February 2010.

Kulash Jr, Damian. “WhoseTube?” The New York Times, 20 February 2010: A17. Retrieved from http://www.nytimes.com/2010/02/20/opinion/20kulash.html
on 22 February 2010.

Lessig, Lawrence. “For The Love of Culture.” The New Republic, 26 January 2010. Retrieved from http://www.tnr.com/print/article/the-love-culture on 28 February 2010.

Lessig, Lawrence. Remix: Marking Art and Commerce Thrive in the Hybrid Economy. The Penguin Press: New York, 2008.

Rohter, Larry. “In Digital Age, Advancing a Flexible Copyright System.” The New York Times, 26 June 2006. Retrieved from http://www.nytimes.com/2006/06/26/arts/26crea.html?_r=1 on 26 February 2010.

Rothstein, Edward. “CONNECTIONS: The Owners of Culture vs. the Free Agents.” The New York Times, 18 January 2003. Retrieved from http://www.nytimes.com/2003/01/18/arts/connections-the-owners-of-culture-vs-the-free-agents.html on 26 February 2010.

Sullivan, Thomas D. “Practicing the Liberty He Preaches.” The New York Times, 29 April 2004. Retrieved from http://www.nytimes.com/2004/04/29/technology/practicing-the-liberty-he-preaches.html on 26 February 2010.

Varian, Hal R. “Copyrights That No One Knows About Don’t Help Anyone.” The New York Times, 31 May 2007. Retrieved from http://www.nytimes.com/2007/05/31/business/31scene.html on 26 February 2010.