'Mash-ups in the Middle': Fair use in the digital age

Pretty interesting discussion last night at UC Berkeley in a panel discussion on Discovering the New Legal Landscape for Digital Media with Denise Howell, Hank Barry and Pamela Samuelson.

For the occasion, I created an 11-minute video about an interesting phenomenon we're seeing at Ourmedia: a couple of dozen mash-ups (out of 45,000 works uploaded) that push the edge of the fair use envelope.

Today is the six-month anniversary of Ourmedia's launch, and we've been wrestling with this since day one. We tell people they can upload works they're legally entitled to upload (plus, no porn), but we have no way of determining where the line of fair use is drawn. Instead, we point people to the fair use guidelines drawn up by Fenwick-West and let our members determine the parameters of fair use for digital works.

The video was among the highlights of the evening, several attendees told me afterward. Before she left, Pam Samuelson said that fair use today means being able to back up your CD or DVD. I respectfully disagreed, saying that the public has a much broader view of what they believe they should be allowed to do with digital media. (See the video for a few somewhat expansive views of fair use.)

Hank Barry, the former CEO of Napster who is among those being sued by the entertainment industry, always has some provocative things to say, and last night was no different. He said the current situation between the entertainment industry (and their allies on Capitol Hill) vs. the Digital Generation (my term for the wired public) amounts to "a Mexican standoff." Which I think is true -- I said it may take 10 years or more before the kids using digital technologies today assume positions of power in government and corporate America.

Some other highlights from the evening:

Denise about the impact of the Grokster decision on startups: "You have to be clear within your company that if your product is capable of infringing uses, the noninfringing uses is what the product is all about."

More Denise: "If you're a nonprofit like Ourmedia and not in it for the bucks, that's going to weigh in the analysis. I don't know if it'll carry the day, but it will and should be a factor." … "Some of the [case] law will be made by companies with big targets on their backs, like Google, because of their fair use business models."

Hank: "I think you have to have a secret room where you go to talk about this stuff." (Laughter.) "You can't define infringement for a client in advance when you've got a technology and you don't know how it's gonna be used. The best inventions result in tools that are surprising for the most part."

Of the courts' predilection for filtering technologies to remove copyrighted works from servers, Hank said: "I'm here to tell you, it doesn't work. We spent $10 million developing a filtering system. It didn't work then, and it ain't working now."

Hank suggested that one of the things he learned during his time at Napster was that "people east of Denver" see the culture very differently than we do out here.

I disagree to some extent -- the divide I see is largely based on generational fault lines, and lines of power (those with power are more likely to acquiesce to the wishes of the entertainment media powers).

The panel discussion will be podcast at a later date by IT Conversations.

In any event, regardless of where you come down on the issue of fair use in the digital age, I think you'll find this video fascinating. (Ourmedia page | play video)