Story: Fair use in the digital age

This story — about enabling fair use in an age of countless online fandom sites — is taken from chapter 4 of Darknet: Hollywood's War Against the Digital Generation. I'm publishing excerpts from the book, along with new material, every Monday for the next several weeks.

Philip Gaines, a multimedia developer in Bellevue, Wash., was such a devoted fan of the sci-fi TV show Firefly that he refused to see it vanish into the abyss when Fox canceled the series after a three-month run in 2002. Instead, he spent months, and $700, creating a fan DVD that paid homage to the show.

What inspired him? “First, this was one of the great TV shows of our time, and I wanted to highlight that,” he says by phone from his home. “Second, the project served as a digital portfolio that showcased my skills as an editor and writer. And finally, this is a step that advances intellectual discourse among fans. This shouldn’t be confined to professors talking about the show in an academic setting. I wanted to bring the discussion out into the open for the rest of us.”

The result is Firefly: A Special Feature, a charming, quirky 3½-hour documentary that may well serve as a prototype for similar homespun multimedia efforts. (If you'd like to write to Gaines, let me know.) His project probes the deeper textures of the series, laying out the arguments of why it was brilliant, complete with audio commentary interspersed with series clips. Since the project’s completion in November 2003, Gaines has given away 600 copies of his two-DVD set, asking only a $9 donation to cover costs.

The enterprising 29-year-old began by writing a 30,000-word script, a fusion of wry observations and essays on subjects like irony and violence. Next, he obtained a DVD from a member of a Firefly fan site, who downloaded episodes from the Darknet because Fox had not yet released an official home video version. Then, he spent eight hours, at $45 an hour, recording the script onto a CD at a local radio station. (He could have bought a digital tape recorder for less.) Finally, he used encryption and decryption tools, as well as DVD authoring software to pull together his audio and scenes from the TV series into a 40-part DVD presentation. He encourages recipients to reproduce his digital tribute and offer it to others.

Gaines took a graduate course at the University of Washington that covered fair use and infringement. “I consider what I’ve done to be fair use, but I’ll admit that in using 3½ hours of video I’m entering a seriously gray area,” he says. To ward off liability, he did not include any media company’s trademarks—“that’s where they usually get you,” he correctly points out—and he made certain to use no more than one-third of any single episode. More important than the legal issues, though, are the practical considerations.

The creators of Firefly have responded favorably to his do-it-yourself DVD, he says, and “Fox would have no interest in suing an underdog like me who only wants to promote their show.”

Gaines’ effort mirrors the territory mined by film critic Roger Ebert, who was so enthralled with the 1998 film Dark City that he recorded a lengthy commentary that was included in the DVD released by the studio. Few of us have that kind of clout, however.

In late 2002, Ebert proposed an alternative way for fans to participate, suggesting the creation of do-it-yourself film commentaries, made up of recorded audio tracks that could be traded over the Net and synched up with the movie. Months later, a website called DVDTracks.com began doing just that, with scores of people participating in film culture and cementing the rubric that everybody’s a critic.

Gaines, apparently, is the first to take this idea a step further. Instead of the clumsy approach of listening to a downloaded audio file while watching a DVD movie on the TV or a computer, he put his commentary right onto a remixed DVD. “The concept of a self-made DVD has gotten the biggest response from people,” he says. “They like the idea of regular folks creating parallel media. I think you’ll be seeing much more of this. The online environment allows for much faster and more diverse discourse, and it gives people access to media they wouldn’t be able to otherwise get.”

Before I can ask him about Hollywood’s claim that the studios need to sign off on any use of their work, Gaines beats me to the punch. “No matter what Jack Valenti says, they are in a hopeless position if they want to keep people from trying to manipulate their finished product. If they put out a movie, people will take that movie, re-edit it, and re-release it.”

Gaines predicts someone will soon take The Lord of the Rings trilogy and edit out scenes that he or she believes slows the narrative. It won’t be Gaines. “There were three unaired episodes of Firefly that I wasn’t able to cover in my original project. I’m contemplating using those unaired episodes in a new project and inviting other viewers to submit essays that I could include in a sequel DVD.”

An entire conference could be built around the legal issues raised by Firefly: A Special Feature. While Darknet focuses primarily on the digital media revolution, a word about the law may be in order here.

Siva Vaidhyanathan, director of communication studies at New York University and an author who has written widely on copyright law, says users are within their rights to borrow and remix cultural works—including movies—for private, non-commercial uses. “Jack Valenti may want to wish away fair use. But his position is in direct conflict with more than a century of case law on the matter. And it ignores the specific language of the 1976 Copyright Act, which codified fair use. In the United States, we have a clearly defined tradition of fair use that speaks to the fact that small, private, non-commercial uses of someone else's copyrighted material should be allowed without having to resort to permission seeking or payment.

“If it's fair use for someone to quote a paragraph of my book and use it in another context—let's say, to criticize it or to write a research paper for school—then it must be fair use to use a snippet of a Star Wars film to show that Jar-Jar Binks is a racist caricature,” he says. “I should not be allowed to veto the use of a small portion of my work and thus prevent a greater social good. Neither should George Lucas. The law does not affect video differently than text, music, or software.”

Vaidhyanathan says we should encourage low-cost, potentially critical uses of copyrighted works because education, scholarship, criticism, and new art are all important and under-funded aspects of our cultural lives. “The scary thing about Valenti's comments is that he basically writes American copyright law these days. Congress listens to him and gives him whatever he wants, regardless of whether it's good for America. And federal courts listen to Congress. If Congress would listen to the American people, it would strengthen fair use. Alas, we may be seeing the last days of fair use because Jack Valenti has declared it so.”

Yale Law School cyberlaw expert Ernest Miller offers a different take, illustrating the law's devilish complexity—and the unsettled nature of users’ rights in the digital age. “The problem is that fair use analysis is incredibly fact-dependent. Even copying a small amount of a copyrighted work as part of another, new work is a violation of copyright,” he says. “For example, a few seconds in a videotape where portions of a copyrighted poster can be seen in the background have been found to meet the threshold for infringement. So, although I would argue that such uses are fair uses, the courts might not agree.”

Users who record audio of their armchair criticisms (as on DVDTracks) would undoubtedly be protected by fair use, but Miller cautions that the law does not allow you to burn a DVD of an entire Hollywood film overlaid with your commentary. He also points out that any use of DVD ripping software—which breaks the copy protection on a DVD—is a federal crime on its face (see chapter 6). And he notes that George Lucas’s production company, Lucasfilm, threatened to sue any website operator who posted a copy of The Phantom Edit, created by a fan who edited out 20 minutes of the annoying Jar-Jar Blinks from the official version of the 1999 film Star Wars: Episode I - The Phantom Menace. (The Phantom Edit proved to be extremely popular online, and copies still circulate in the Darknet. Here's Siva's take in Salon on Phantom editors.)

While sounding a guarded legal note, Miller thinks the issue goes beyond legalisms to social freedoms and cultural values. He says Hollywood would benefit from embracing digital tools that allow users to contribute appreciations and commentaries attached to DVDs. “The studios would sell more copies,” he argues. “Gaming companies know this already. The makers of games like Quake and Unreal provide users with the ability to create new levels of play or to introduce new characters, giving rise to entire communities that support such efforts.”

Gaines points out that it has become commonplace to include supplementary material on Hollywood DVDs—interviews with everyone from the director right on down to the sound designer and key grip. Why not provide an easy, legal way for fans to provide full commentaries as well?

(From Darknet: Hollywood's War Against the Digital Generation. You may copy excerpts from this entry to comment on or critique the work or to otherwise engage in fair use.)