Today is the last day of the Association of Internet Researchers Conference 2016 – with a couple fewer sessions but I’ll be blogging throughout.
As usual this is a liveblog so corrections, additions, etc. are welcomed.Â
PS-24: Rulemaking (Chair:Â Sandra Braman)
The DMCA Rulemaking and Digital Legal Vernaculars – Olivia G Conti, University of Wisconsin-Madison, United States of America
Apologies, I’ve joined this session late so you miss the first few minutes of what seems to have been an excellent presentation from Olivia.Â
Property and ownership claims made of distinctly American values… Grounded in general ideals, evocations of the Bill of Rights. Or asking what Ben Franklin would say… Bringing the ideas of the DCMA as being contrary to the very foundations of the United Statements. Another them was the idea of once you buy something you should be able to edit as you like. Indeed a theme here is the idea of “tinkering and a liberatory endeavour”. And you see people claiming that it is a basic human right to make changes and tinker, to tweak your tractor (or whatever). Commentators are not trying to appeal to the nation state, they are trying to perform the state to make rights claims to enact the rights of the citizen in a digital world.
So, John Deere made a statement that tractro buyers have an “implied license” to their tractor, they don’t own it out right. And that raised controversies as well.
So, the final register rule was that the farmers won: they could repair their own tractors.
But the vernacular legal formations allow us to see the tensions that arise between citizens and the rights holders. And that also raises interesting issues of citizenship – and of citizenship of the state versus citizenship of the digital world.
The Case of the Missing Fair Use: A Multilingual History & Analysis of Twitter’s Policy Documentation – Amy Johnson, MIT, United States of America
This paper looks at the multilingual history and analysis of Twitter’s policy documentation. Or policies as uneven scalar tools of power alignment. And this comes from the idea of thinking of the Twitter as more than just the whole complete overarching platform. There is much research now on moderation, but understanding this type of policy allows you to understand some of the distributed nature of the platforms. Platforms draw lines when they decide which laws to tranform into policies, and then again when they think about which policies to translate.
If you look across at a list of Twitter policies, there is an English language version. Of this list it is only the Fair Use policy and the Twitter API limits that appear only in English. The API policy makes some sense, but the Fair Use policy does not. And Fair Use only appears really late – in 2014. It sets up in 2005, and many other policies come in in 2013… So what is going on?
So, here is the Twitter Fair Use Policy… Now, before I continue here, I want to say that this translation (and lack of) for this policy is unusual. Generally all companies – not just tech companies – translate into FIGS: French, Italian, German, Spanish languages. And Twitter does not do this. But this is in contrast to the translations of the platform itself. And I wanted to talk in particularly about translations into Japanese and Arabic. Now the Japanese translation came about through collaboration with a company that gave it opportunities to expand out into Japen. Arabic is not put in place until 2011, and around the Arab Spring. And the translation isn’t doen by Twitter itself but by another organisaton set up to do this. So you can see that there are other actors here playing into translations of platform and policies. So this iconic platforms are shaped in some unexpected ways.
So… I am not a lawyer but… Fair Use is a phenomenon that creates all sorts of internet lawyering. And typically there are four factors of fair use (Section 107 of US Copyright Act of 1976): purpose and character of use; nature of copyright work; amount and substantiality of portion used; effect of use on potential market for or value of copyright work. And this is very much an american law, from a legal-economic point of view. And the US is the only country that has Fair Use law.
Now there is a concept of “Fair Dealing” – mentioned in passing in Fair Use – which shares some characters. There are other countries with Fair Use law: Poland, Israel, South Korea… Well they point to the English language version. What about Japanese which has a rich reuse community on Twitter? It also points to the English policy.
So, policy are not equal in their policynesss. But why does this matter? Because this is where rule of law starts to break down… And we cannot assume that the same policies apply universally, that can’t be assumed.
But what about parody? Why bring this up? Well parody is tied up with the idea of Fair Use and creative transformation. Comedy is protected Fair Use category. And Twitter has a rich seam of parody. And indeed, if you Google for the fair use policy, the “People also ask” section has as the first question: “What is a parody account”.
Whilst Fair Use wasn’t there as a policy until 2014, parody unofficially had a policy in 2009, an official one in 2010, updates, another version in 2013 for the IPO. Biz Stone writes about, when at Google, lawyers saying about fake accounts “just say it is parody!” and the importance of parody. And indeed the parody policy has been translated much more widely than the Fair Use policy.
So, policies select bodies of law and align platforms to these bodies of law, in varying degree and depending on specific legitimation practices. Fair Use is strongly associated with US law, and embedding that in the translated policies aligns Twitter more to US law than they want to be. But parody has roots in free speech, and that is something that Twitter wishes to align itself with.
Visual Arts in Digital and Online Environments: Changing Copyright and Fair Use Practice among Institutions and Individuals Abstract – Patricia Aufderheide, Aram Sinnreich, American University, United States of America
Patricia: Aram and I have been working with the College Art Association and it brings together a wide range of professionals and practitioners in art across colleges in the US. They had a new code of conduct and we wanted to speak to them, a few months after that code of conduct was released, to see if that had changed practice and understanding. This is a group that use copyrighted work very widely. And indeed one-third of respondents avoid, abandon, or are delayed because of copyrighted work.
Aram: four-fifths of CAA members use copyrighted materials in their work, but only one fifth employ fair use to do that – most or always seek permission. And of those that use fair use there are some that always or usually use Fair Use. So there are real differences here. So, Fair Use are valued if you know about it and undestand it… but a quarter of this group aren’t sure if Fair Use is useful or not. Now there is that code of conduct. There is also some use of Creative Commons and open licenses.
Of those that use copyright materials… But 47% never use open licenses for their own work – there is a real reciprocity gap. Only 26% never use others openly licensed work. and only 10% never use others’ public domain work. Respondents value creative copying… 19 out of 20 CAA members think that creative appropriation can be “original”, and despite this group seeking permissions they also don’t feel that creative appropriation shouldn’t neccassarily require permission. This really points to an education gap within the community.
And 43% said that uncertainty about the law limits creativity. They think they would appropriate works more, they would public more, they would share work online… These mirror fair use usage!
Patricia: We surveyed this group twice in 2013 and in 2016. Much stays the same but there have been changes… In 2016, 2/3rd have heard about the code, and a third have shared that information – with peers, in teaching, with colleagues. Their associations with the concept of Fair Use are very positive.
Arem: The good news is that the code use does lead to change, even within 10 months of launch. This work was done to try and show how much impact a code of conduct has on understanding… And really there was a dramatic differences here. From the 2016 data, those who are not aware of the code, look a lot like those who are aware but have not used the code. But those who use the code, there is a real difference… And more are using fair use.
Patricia: There is one thing we did outside of the survey… There have been dramatic changes in the field. A number of universities have changed journal policies to be default Fair Use – Yale, Duke, etc. There has been a lot of change in the field. Several museums have internally changed how they create and use their materials. So, we have learned that education matters – behaviour changes with knowledge confidence. Peer support matters and validates new knowledge. Institutional action, well publicized, matters .The newest are most likely to change quickly, but the most veteran are in the best position – it is important to have those influencers on board… And teachers need to bring this into their teaching practice.
Panel Q&A
Q1) How many are artists versus other roles?
A1 – Patricia) About 15% are artists, and they tend to be more positive towards fair use.
Q2) I was curious about changes that took place…
A2 – Arem) We couldn’t ask whether the code made you change your practice… But we could ask whether they had used fair use before and after…
Q3) You’ve made this code for the US CAA, have you shared that more widely…
A3 – Patricia) Many of the CAA members work internationally, but the effectiveness of this code in the US context is that it is about interpreting US Fair Use law – it is not a legal document but it has been reviewed by lawyers. But copyright is territorial which makes this less useful internationally as a document. If copyright was more straightforward, that would be great. There are rights of quotation elsewhere, there is fair dealing… And Canadian law looks more like Fair Use. But the US is very litigious so if something passes Fair Use checking, that’s pretty good elsewhere… But otherwise it is all quite territorial.
A3 – Arem) You can see in data we hold that international practitioners have quite different attitudes to American CAA members.
Q4) You talked about the code, and changes in practice. When I talk to filmmakers and documentary makers in Germany they were aware of Fair Use rights but didn’t use them as they are dependent on TV companies buy them and want every part of rights cleared… They don’t want to hurt relationships.
A4 – Patricia) We always do studies before changes and it is always about reputation and relationship concerns… Fair Use only applies if you can obtain the materials independently… But then the question may be that will rights holders be pissed off next time you need to licence content. What everyone told me was that we can do this but it won’t make any difference…
Chair) I understand that, but that question is about use later on, and demonstration of rights clearance.
A4 – Patricia) This is where change in US errors and omissions insurance makes a difference – that protects them. The film and television makers code of conduct helped insurers engage and feel confident to provide that new type of insurance clause.
Q5) With US platforms, as someone in Norway, it can be hard to understand what you can and cannot access and use on, for instance, in YouTube. Also will algorithmic filtering processes of platforms take into account that they deal with content in different territories?
A5 – Arem) I have spoken to Google Council about that issue of filtering by law – there is no difference there… But monitoring
A5 – Amy) I have written about legal fictions before… They are useful for thinking about what a “reasonable person” – and that can be vulnerable by jury and location so writing that into policies helps to shape that.
A5 – Patricia) The jurisdiction is where you create, not where the work is from…
Q6) There is an indecency case in France which they want to try in French court, but Facebook wants it tried in US court. What might the impact on copyright be?
A6 – Arem) A great question but this type of jurisdictional law has been discussed for over 10 years without any clear conclusion.
A6 – Patricia) This is a European issue too – Germany has good exceptions and limitations, France has horrible exceptions and limitations. There is a real challenge for pan European law.
Q7) Did you look at all of impact on advocacy groups who encouraged writing in/completion of replies on DCMA. And was there any big difference between the farmers and car owners?
A7) There was a lot of discussion on the digital right to repair site, and that probably did have an impact. I did work on Net Neutrality before. But in any of those cases I take out boiler plate, and see what they add directly – but there is a whole other paper to be done on boiler plate texts and how they shape responses and terms of additional comments. It wasn’t that easy to distinguish between farmers and car owners, but it was interesting how individuals established credibility. For farmers they talked abot the value of fixing their own equipment, of being independent, of history of ownership. Car mechanics, by contrast, establish technical expertise.
Q8) As a follow up: farmers will have had a long debate over genetically modified seeds – and the right to tinker in different ways…
A8) I didn’t see that reflected in the comments, but there may well be a bigger issue around micromanagement of practices.
Q9) Olivia, I was wondering if you were considering not only the rhetorical arguements of users, what about the way the techniques and tactics they used are received on the other side… What are the effective tactics there, or locate the limits of the effectiveness of the layperson vernacular stategies?
A9) My goal was to see what frames of arguements looked most effective. I think in the case of the John Deere DCMA case that wasn’t that conclusive. It can be really hard to separate the NGO from the individual – especially when NGOs submit huge collections of individual responses. I did a case study on non-consensual pornography was more conclusive in terms of strategies that was effective. The discourses I look at don’t look like legal discourse but I look at the tone and content people use. So, on revenge porn, the law doesn’t really reflect user practice for instance.
Q10) For Amy, I was wondering…Â Is the problem that Fair Use isn’t translated… Or the law behind that?
A10 – Amy) I think Twitter in particular have found themselves in a weird middle space… Then the exceptions wouldn’t come up. But having it in English is the odd piece. That policy seems to speak specifically to Americans… But you could argue they are trying to impose (maybe that’s a bit too strong) on all English speaking territory. On YouTube all of the policies are translated into the same languages, including Fair Use.
Q11) I’m fascinated in vernacular understanding and then the experts who are in the round tables, who specialise in these areas. How do you see vernacular discourse use in more closed/smaller settings?
A11 – Olivia) I haven’t been able to take this up as so many of those spaces are opaque. But in the 2012 rule making there were some direct quotes from remixers. And there a suggestion around DVD use that people should videotape the TV screen… and that seemed unreasonably onorous…
Chair) Do you forsee a next stage where you get to be in those rooms and do more on that?
A11 – Olivia) I’d love to do some ethnographic studies, to get more involved.
A11 – Patricia) I was in Washington for the DMCA hearings and those are some of the most fun things I go to. I know that the documentary filmmakers have complained about cost of participating… But a technician from the industry gave 30 minutes of evidence on the 40 technical steps to handle analogue film pieces of information… And to show that it’s not actually broadcast quality. It made them gasp. It was devastating and very visual information, and they cited it in their ruling… And similarly in John Deere case the car technicians made impact. By contrast a teacher came in to explain why copying material was important for teaching, but she didn’t have either people or evidence of what the difference is in the classroom.
Q12) I have an interesting case if anyone wants to look at it, around Wikipedia’s Fair Use issues around multimedia. Volunteers take pre-emptively being stricter as they don’t want lawyers to come in on that… And the Wikipedia policies there. There is also automation through bots to delete content without clear Fair Use exception.
A12 – Arem) I’ve seen Fair Use misappropriated on Wikipedia… Copyright images used at low resolution and claimed as Fair Use…
A12- Patricia) Wikimania has all these people who don’t want to deal with law on copyright at all! Wikimedia lawyers are in an a really difficult position.