A conversation with Will Buckley about artists’ rights and efforts to update the DMCA
Will Buckley, is the founder of Fare Play a non-profit educational organization supporting the rights of individuals to control the digital distribution and sale of their copyrighted work. He’s spent the past five years working to bring creators together and inspire them “to become evangelists for their lives and careers.”
Build a unified online community where filmmakers, musicians, authors, artists and photographers are empowered to collaborate and produce peer-to-peer communication with their fans about the personal impact of illegal downloading on their lives, their dreams and their careers. — Fare Play vision statement
Buckley’s latest effort to protect the rights of artists in the digital age is the newly launched Take Down, Stay Down petition campaign to Congress. The petition aims to “Restore an artist’s right to determine what happens to their work on the internet,” by asking Congress to update Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.
Last week I had an opportunity to have a conversation with Will to talk about his advocacy work on behalf of artists and the Take Down, Stay Down petition.
ELLEN: What you inspired you to become an advocate for artists’ rights in the digital age?
WILL: I worked in the music business from 1972 to 1985. I did everything; radio, retail, band management, promotion, sales. My last project was running an indie label, Danny O’keefe was the artist. We had an almost hit, ‘Along for the Ride’ that made it to number 18 on AC. We took the record as far as we could, but didn’t have the $50k for payola needed to get airplay in the major markets. I put everything I had into that record and had relocated from LA to SF with a wife and newborn son. I felt it was time to move on and have always regretted it. You know the experience, it happened to you with your film, ‘Along Came Lola’. It’s painful.
That experience and my passion for music has me doing what I’m doing today. Fighting for artists.
ELLEN: What’s the focus of your efforts on behalf of creators?
WILL: Right now it is dealing with online piracy. We recently released a petition asking Congress to amend Section 512 take down notification provision of the DMCA. A law that fails to protect artists and their work while unintentionally granting a free ride to infringing sites. It wasn’t our idea. My Space was actually talking about a ‘staydown’ provision back in 2007.
The current law flies in the face of justice, but is indirectly supported by Google through their extensive lobbying efforts and through the EFF. That’s why this petition goes out of its’ way to avoid any “Free Speech” or “Censorship” issues by granting control to the individual copyright holder.
The real reason we’re going after this aggressively? There’s a window of opportunity. We can win. The House Judiciary Committee is reviewing all the copyright laws for the first time since 1976. Which means everything’s on the table. I’ve heard and read a lot of encouraging things from the Congress. I’ve met with Rep. Nadler in NYC, who’s been a positive advocate for Blake Morgan and I Respect Music. I travelled to DC last September to have a private meeting with Joe Keeley, Chief Counsel of the Committee and Norberto Salinas, Democratic Counsel on the Committee. I was heard. They asked the right questions. These are bright guys wanting to do the right thing.
Tomorrow, I fly to SF to attend two more open hearings on copyright with Rep. Goodlatte, the Chairman of the House Judiciary Committee and Rep. Conyers head on the Democratic side and a serious fan of Jazz. i’m going to lend my support in whatever way I can.
Meanwhile, I’ve been in talks with the Content Creators Coalition, Authors Guild, Authors United, American Society of Media Photographers trying to build a coalition of support across different groups of creators. Because that is where the true power lies. It’s easy for the public to minimize the problem when it’s just musicians or just filmmakers, but you get these groups together and the dynamic of the conversation changes dramatically as does public perception.
Until that happens the problem gets swept under the rug. There’s a lot at stake here. While some may claim that there are more people creating than ever, there is no doubt that most of the real talent is being starved by a dynamic that rewards the online distributors, not the creators.
Then I do my non-profit work that includes speaking to performing arts students about the value of supporting creators and giving these students some tools to use when they talk to their friends about online piracy. Trying to enlighten the next generation to the downside of piracy and why it actually hurts people.
WILL: I wouldn’t be doing it if in fact Congress wasn’t meeting taking a look at copyright reform. My feeling was if we don’t at least give a run at this at this period in time, we’re really missing out on an opportunity.
ELLEN:In asking for Take Down and Stay Down are you proposing that we amend or revise the actual DMCA or is this an additional piece of legislation? How do you see it in terms of how it’s implemented, how this effort unfolds?
WILL: We are asking Congress to simply amend legislation that has failed to protect copyright holders. I see using the existing infrastructure for enforcement.
ELLEN: When I was reading through the petition, etc. and looking at the mechanism you were focusing on, the idea that people or a website will remove an infringing link but then repost the material using another link that was kind of the modus operandi of Megaupload, and cyber lockers in particular.
Do you see any applications for other like UGC sites like YouTube? Where do you see this having the biggest impact?
WILL: I see it having an impact everywhere. The way the law is written now, having this takedown notification…that really allows infringing sites to continue to post pirated material–and YouTube is culpable of this also–they play this game constantly in terms of reposting content. I see it cutting across all kinds of internet service providers.
ELLEN:Well, let’s take a look at YouTube, for example, because obviously that’s a prime example of where a fair amount of piracy happens. YouTube has put into place content matching system that works, not totally 100 percent of the time, but it chugs along and does a fair job. I won’t say it does an excellent job, but in my experience does a fair job identifying matching content that may, or may not be infringing, and that then gives the rights owner the option to remove it, monetize it, or block it.
You’re saying that you want YouTube to go beyond this?
WILL:
The biggest mistake this Congress can make is to leave enforcement up to the tech industry. Many of the problems that exist today could have been addressed a decade ago. I can’t over-stress the seriousness of piracy and the significant damage it has done to both creators and the entertainment industry.
ELLEN: So you think Take Down means Stay Down can make a dent in the problems faced by artists?
WILL: Yes, it can make a dent. Right now without ‘staydown’ copyright holders have no effective control over who uses their content. If you look at the Grooveshark case, it took nearly four of court proceedings to shut them down and they were brought down by a paper trail of e-mails from management instructing their own employees to upload specific songs. Songs Grooveshark needed to drive more traffic to their site to increase advertising revenue.
We propose that Congress set a threshold of copyright infractions based on the number of outstanding, unresolved ‘takedown and staydown’ notifications. When those thresholds are reached ISPs can be ordered to block infringing sites. We’ve ‘known’ for over a decade that Pirate Bay is an infringing website, yet without a ‘staydown’ provision ISPs can’t be ordered to block them. The fact that U.S. regulators can’t force Google to block Pirate Bay only proves that our country currently has no effective anti-piracy laws.
Artists should not have to forfeit earnings as endless appeals are filed and infringing websites are allowed to operate for years as these cases languish in the court system.
ELLEN: I think people have become complacent. People have become used to “it’s there, take it” kind of mentality. To turn the tide with regard to that is quite a difficult proposition. I think it’s interesting to note what happens though when people see their own creative work threatened. It happened when Instagram tried to change the terms of service as to who owned the uploaded photos, what could be done with them. People were all outraged. “It’s mine. It’s mine. I made it, I should be able to control it.” When it comes to personal work, they get it, but they don’t make the leap to understand that that’s what all creators are facing in terms of their own work.
WILL: The hypocrisy is palpable. It points up two things. First the incredible job the piracy generation did in creating a reality distortion field. ‘Artists are wealthy so screw them for asking.’ ‘The record labels are the evil ones.’ ‘We’ve created this incredible opportunity for exposure and broken down the barriers to access.’ ‘Artists can benefit from alternative streams of income.’ The subterfuge is so engrained and accepted that even services like Spotify are making similar claims.
To your second point about Instagram. I agree. Creativity is personal and when it’s yours you’re going to be furious, even if it was your friend who took it. How anyone can miss the correlation to professional artists is beyond me.
Taylor Swift has very little of her material pirated or downloaded illegally. I mean tiny, infinitesimal. The other thing I learned is that part of what Taylor Swift does is during her concerts, she actually talks a little bit about this to her fans and says, “Friends don’t steal from friends.”
She has been able to create this relationship with her fans so that they actually appreciate and respect it so unlike in the past she’s not taunted for that. Her fans actually get it.
ELLEN: That kind of engagement is sort of an educational teaching moment, I guess.
As an advocate for legislative changes I’m operating as a private citizen. My work in the non-profit sector has to do with education, going into performing arts schools and talking to students with an established interest in the arts about online piracy and the importance of contribution to those who create. When I ask students if they will pursue a career in the arts, most say no. When I ask why, they talk about economic uncertainty and how in today’s world it is a bad career choice.
ELLEN: So back to copyright reform and Washington, what’s happening?
WILL:My sense is that artists have support from many of the members of Judiciary Committee, but they are up against powerful, well financed companies and trade organizations investing tens of millions in lobbyists who are well connected and fighting hard to maintain the status quo.
Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail. And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent. If that doesn’t change the creative community may come away empty handed from the proceedings.
ELLEN: Well, one of my favorite ways to defining is you won’t miss what isn’t made. People say, “Oh, well there’s plenty of stuff. There’s plenty of things out there.” You don’t know how many musicians aren’t creating music anymore or filmmakers aren’t creating films. Yeah, there’s always going to be stuff out there but not necessarily at the quality that we have come to expect. Yeah, we’re all citizen creators now with our iPhones and Instagram accounts, etc. but we still just because, I tell my students, “Just because you can type on a computer and use Word to write a document or write a story, doesn’t mean it’s a story that’s particularly good.”
It takes time and effort to craft something that’s worth while. Time equals money and people have to put food on the table and there’s this disconnect between, “Oh, if I can do it with my iPhone it must be easy so why should I bother to pay for it?” Or “Why should I pay for it if I don’t like it?” It’s like well, do you go into a restaurant and not pay for your meal? Even if it’s not the best one you’ve ever had?
I think if we continue to try and frame it in the right way, we might make some progress. The US, it’s part of a world economy and these companies have to do business elsewhere–and fortunately– in places like Europe they’re a little more protective of their arts and creators than perhaps the US is. Maybe that will help a bit..
WILL: Well, you know back to what you said. One of the first things that I saw that taught me so much about the problem was your video “Popup Pirates” and when I watched that I was astounded at how virulent this disease was and how many high-profile advertisers and players were involved in this. There’s something fundamentally broken about that that really disturbs me.
As a country we should be supporting each other and pulling together. The fact that we have the kinds of advertisers continually popping up supporting these pirate sites, which are for-profit as we both know. They either sell advertising upgrades, things of that sort. It’s not Santa Claus giving stuff away, it’s a for-profit business.
ELLEN: Yeah, it’s not altruism.
WILL: It’s not altruism. I think it comes down to we need to have the laws in place. We shouldn’t have anarchy where people make a decision whether they want to download or not. First of all, I don’t think it’s fair to somebody that age that they’re offered all of this stuff without any kind of constraints and continue to thumb their noses at the establishment because half the time we go to court with these entities, we lose. Oftentimes we lose and the sites pop back up again.
I believe that creates a feeling with a lot of these people that if something was really wrong with it, they’d shut it down kind of thing.
ELLEN: Right, right… Well, it’s like anything that’s online is sacrosanct. It’s not treated the same way brick and mortar situation would be treated, when essentially, it’s the same thing going on…even with the behavior of advertisers, everybody’s out to make a buck no matter what it takes. As long as no one’s slapping them down, they’re going to continue to do it because they’re not it’s not necessarily … their activities aren’t necessarily concerned with what’s moral. They’re concerned with what’s profitable. As long as they can get away with it, they’ll continue to do so.
That’s why you have this whole ecosystem that’s evolved that’s based on take first and maybe ask for permission later if you absolutely have to.
Back to your petition, what happens when someone signs?
WILL:Everyone who signs the petition will be sending a letter, signed by them electronically, to every member of the House Judiciary Committee instructing Congress to amend Section 512 Takedown Notifications to include a ‘stay down’ provision.
We’re going to need a major turn out of support from the artistic community if we’re going to even get copyright reform to the floor for a vote, much less score some positive gains. If we fail to get bills passed that protect artists and provide equitable compensation this time around it will further limit the number of creators who can earn a living from their work. The issue of Take Down and Stay Down impacts every creator whose work can be digitized and distributed over the internet. It presents our best opportunity to bring everyone together on one initiative.
Andrew Sampson, developer of Aurous, claims his app is legal and compares its functionality to that of Google’s search engine. Of course we all know what Google’s record has been when it comes to linking to pirated content. Sampson told Billboard:
We’re pulling content from sources that are licensed. From a legal standpoint, what we’re doing is okay. All files are streamed from legitimate sources — we don’t host anything. We only share cached results over peer-to-peer…
…There are a lot of sites saying we’re the Popcorn Time of music. That’s not accurate. We can play content from all around the web, and we use a BitTorrent-style technology to share links to content — but not that actual content itself.
The problem is that much of the content on those so-called legit sources is NOT actually licensed. There’s plenty of pirated content on YouTube (one of the sources Aurous uses). As noted in a piece by Rich McCormick in Verge.
In addition to potentially acceptable locations, such as official promotional streams and music videos, these services could also draw from sources that would upset record labels: tracks illegally uploaded to SoundCloud, for example, or leaked albums put on YouTube weeks before their street dates. Ads, too, could be stripped out by Aurous, denying labels extra cash per play.
Of course Aurous has its defenders. Predictably the Electronic Frontier Foundation got into the act with this unfortunate Tweet using the hashtag #SOPApower.
Per usual, folks at the EFF seem to believe there’s something noble in enabling online piracy. As it repeatedly demonstrates through its advocacy, the EFF’s view is that musicians don’t really have the right to earn money off their hard work.
I imagine, however, that those employed at the EFF to think up with these insightful Tweets appreciate the paychecks they earn. According to documents published on Pro Publica, in 2013 the EFF spent $3,402,997 on salaries for its 49 employees. (That averages out to nearly 70k per employee).
For the record the EFF’s total revenue in 2013 was a tidy $9,444,822. The organization’s net assets were listed over 15 million. I wonder what additional pro-artist advocacy the Content Creators Coalition could do with 15 million bucks?
Though I certainly don’t begrudge those at EFF the right to earn a decent living by Tweeting about SOPA (an act of Free Speech) plenty of musicians would undoubtedly be thrilled to earn a salary anywhere close to the EFF 70K average.
That the EFF continues to demonstrate such disdain for artists by defending a piracy app like Aurous right out of the gate isn’t surprising, but it’s also not a strategy based on public good. Rather, it’s a strategy that’s good for the tech industry–an industry built on the credo of take first, (maybe) ask permission later.
EFF’s SOPA perseveration
Because it does the bidding of the tech industry, it’s not entirely surprising to see that the EFF media team relies on raising the SOPA battle cry again and again. After all, SOPAs defeated is is generally considered the tech industry’s greatest lobbying win yet.
Let’s remember that SOPA was introduced in 2011. Last time I checked it’s 2015. Despite the fact SOPA is long dead and buried, EFF’s talking points continue to rely on SOPA as a worn out buzzword to rally the troops. I would caution the EFF powers that be to remember what happened to the boy who cried “wolf” too many times.
Ultimately there’s something unseemly in an organization that boasts net assets of over 15 million dollars working so hard to undermine artists’ (often meager) livelihoods. Taking down Aurous will NOT “break the internet.” What it will do is help protect the work of musicians so that they can earn a living wage through the legal distribution of the work.
The IP Awareness Foundation report on piracy demonstrates that an effective war against piracy is one fought on multiple fronts
Piracy rates decrease 4% overall
Some positive news on the piracy front from Australia in a report just released by the Intellectual Property Awareness Foundation. The study finds that Australian piracy rates (among those 18 to 64) have decreased 4% in the past year.
Following the report’s release some of the headlines focused on new streaming services like Netflix as the reason for the decrease, but IP Awareness Executive Director Lori Flekser says other factors like the high-profile Dallas Buyers Club lawsuit, and legislation allowing blocking of pirate sites and a soon-to-be-enforced requirement that ISPs send customers “copyright infringement” warnings if they download pirated content.
Flekser expressed the belief that to successfully fight online piracy, the battle needs to happen on multiple fronts:
Piracy has always needed a range of measures to tackle the problem as we all know there is no silver bullet. This fall in piracy rates is definitely largely attributable to the combination of the government’s new legislation, plus the ongoing efforts of the creative industries to continue delivering great content at accessible prices to Australian consumers and the work being done to educate consumers about the impact of copyright theft…
…Strong copyright laws are needed to ensure the vibrancy and growth of the creative sector which in turn contributes to the economy, provides jobs and stimulates local culture. Copyright facilitates innovation rather than hinders it.
Despite the positive trends found by the study, there’s also indications that so-called “persistent pirates” have dug in and are stealing at greater rates than in the past. Some key findings from the study include:
• 25% of Australian adults aged 18-64 pirate – a decrease from 29% in the previous year.
• Persistent pirates continue to maintain high levels of frequency with 40% claiming to be pirating more than they did 12 months ago.
• Those who have pirated are far more likely than those who have never pirated to be aware of anti-piracy initiatives such as the Copyright Amendment Bill 2015 (43% vs 24%), Dallas Buyers Club litigation (51% vs 42%) and proposed notification scheme (48% vs 32%).
• Streaming services show growth – from 26% in 2014 to 32% in 2015, with high levels of awareness of new services. 33% of respondents accessing a subscription service are taking advantage of a free trial, with 66% of those indicating their intention to take up a paid service in future.
• Of those who claim to be pirating less frequently, 33% identify legal alternatives as the main reason for declining piracy rates, while 63% cite other reasons including moral considerations (21% – feeling bad about pirating/acknowledging piracy is theft) or self-interest (16% – worrying about being caught or getting a virus) or no longer having time (13%)
Flekser also noted that education plays an important role in lowering piracy rates and she was quick to praise Australian government officials for their work in helping safeguard the rights of creators:
We applaud the leadership shown by Government in passing critical legislation, and the public discourse from Ministers Turnbull and Brandis, which has shone a light on this issue and given the creative industry the opportunity to have its say amidst the very vocal blogosphere and wide media coverage of a well intentioned but not always well-informed consumer advocacy campaign…
It’s always positive news to see piracy numbers decline anywhere in the world. And while it’s too early to predict where all the chips may fall, one hopes that U.S. lawmakers will look to Australia’s approach as a potential blueprint for designing a successful attack on piracy here.
Our representatives in Congress need to understand that taking legislative action against online piracy profiteers won’t break the internet, but it will help protect the livelihoods of American workers who work in a wide swath of creative industries.
As Wade Tyree wrote in a recent piece for The Hill, “The magic depends on us all, creators and audiences alike.”
Sandra Aistars now Clinical Professor & Senior Scholar & Director of Copyright Research & Policy of CPIP
I’d like to take a moment to thank Sandra for all her hard work on behalf on indie artists, filmmakers, musicians and more. Without her unwavering guidance these past few years, there’s no doubt in my mind that our rights as creators would have been further undermined. Working in the trenches in Washington, and being the target of anti-copyright activists online, is not an easy job, but it’s one which Sandra handed with professionalism and grace. I’m excited to see what she has planned for her new venture with George Mason University of Law and wish her all the best.
Mr.Kupferschmid seems like an excellent person to succeed Sandra. His background working on copyright issues in with both tech and creative interests make him well suited to lead the Copyright Alliance and be an influential advocate for creator’s rights in coming years:
Keith brings over two decades of experience in copyright law and policy. At SIIA, he represented and advised software and content companies on intellectual property policy, legal, and enforcement matters. He also supervised the Anti-Piracy Division, including managing anti-piracy staff, investigators and outside counsel, and working with federal and state government officials on civil and criminal piracy cases. Prior to that, he was an attorney at Finnegan, Henderson, Farabow, Garrett & Dunner, as well as at the US Patent and Trademark Office (USPTO), the Copyright Office, and the US Trade Representative (USTR).
These are crucial times in the fight to protect creative rights across the spectrum and Mr. Kupferschmid promises to work on behalf of creators across the spectrum, large and small, as he tackles a number of challenging copyright issues:
I am thrilled to be the new CEO of the Copyright Alliance…. Sandra did a tremendous job building the Alliance into a respected and thoughtful organization that effectively represents the copyright interests of all types and sizes of creators and innovators. As SVP of Intellectual Property for SIIA the past 16 and a half years I worked with SIIA’s tech companies—both large and small—as well as other stakeholders in the copyright, tech, and academic communities to develop amicable solutions to complex copyright policy and enforcement issues. I hope to use my experiences in the copyright and tech arenas to further build on the strong foundation established by Sandra.
I wish him well on his new journey and am looking forward to his efforts to build more bridges with indie artists across all disciplines.
Kim Dotcom’s Court Hearing Continues
In other news, Kim Dotcom’s extradition hearing in Auckland District Court continue this week in New Zealand with Crown prosecutor, Christine Gordon who is representing the United States, wrapping up her presentation as to why New Zealand should extradite the pirate site (Megaupload) founder to the U.S. to face charges that include racketeering, copyright infringement and money laundering. Gordon focused rewards paid to top infringers:
Gordon told a judge this week that after Dotcom launched Megaupload in 2005, it grew to become so popular that each day 50 million people used the site, sucking up 4 percent of all Internet traffic.
“This was a big fraud but conducted in a fairly simple manner…
Behind the scenes, the respondents admitted their business broke the law. Sometimes they enjoyed the fact they were making their money by breaking the law,” she said. “Sometimes they worried about protection, and pondered what action they should take to, and I’m quoting here Mr. Dotcom’s words, ‘counter the justice system.” –New Zealand Herald
#1 Our pirate pal Kim Dotcom is back in the news as a hearing for his extradition to the United States to face charges of copyright infringement, racketeering, and money laundering was held Monday in New Zealand:
Big car, big chair, big black outfit means a grand entrance at court for America’s target. –NZ Herald
#2 Copyright Reform Takes Center Stage in Nashville. It’s a chance for those who work in the music industry to make sure their voices are heard as members of the House Judiciary Committee come to town to talk copyright and two pieces of legislation close to the heart of those in Nashville, Two pieces of legislation championed in Nashville — the Songwriter Equity Act and the Fair Play Fair Pay Act.
Court’s language on “fair use” won’t change fight against online piracy
Indie filmmakers and musicians who find their work uploaded to YouTube without permission are probably pretty familiar with sending DMCA notices to Google. I know I am. I also know that the 9th Circuit U.S. Court of Appeal’s decision in the EFF’s infamous “Dancing Baby” lawsuit will have ZERO impact on how I approach sending those notices moving forward.
In the wake of Monday’s decision, much has been made (and written) about the potential impact it will have on content creators who must use the DMCA to remove infringing/pirated copies of their work online. Debate centers around the court’s interpretation of “fair use” and whether a rights holder must consider whether fair use applies before sending a takedown notice. Fact is, I already do that each and every time I send a notice.
When I find a full copy of our film on YouTube, I send a takedown notice. When I find our film uploaded in parts on YouTube (part 1, part 2, part 3, etc) I send a takedown notice. When I find sections of our film more than 3 or 4 minutes long uploaded on YouTube, I typically send a takedown notice. When I find someone has edited and uploaded a mashup using short clips from our film I generally just monetize the video (usually the music is owned by someone else) and leave the clip alone. As much as I believe that the DMCA is broken--and weighted against creators–it’s the only tool we have to protect our work from online theft so I use it…often.
In terms of judging whether something is “fair use” I consider how much of our film is used and the way it’s used. While I’m pretty well aware of what “fair use” means, I’m sorry to say that those who upload content to YouTube are not. In a number of instances YouTube users have uploaded copies of our film in its entirety. When I find these copies I immediately issue a takedown. No brainer right?
Many YouTube users don’t understand “fair use”
Well, apparently many YouTube users don’t have a clue as to what fair use means since some protest my takedowns saying they have the right to upload my film because doing so is “fair use.” When this happens I reinstate my claim and send them a polite note explaining that they are wrong and that it would be a good idea to review YouTube’s own explanations as to what fair use actually means:
The four factors of fair use
In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.
2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
I must say, however, that as a filmmaker I’ve not really taken advantage of fair use. When I co-directed and produced the documentary Fighting for Our Lives-Facing AIDS in San Francisco we used short video and music clips from various secondary sources. Sometimes the video clips we used were only a few seconds long, but we always asked for permission (in writing) from the creator(s). Sure, we probably could have used most of this material without asking, but as a filmmakers we respected the work of other creators.
Just last week I received a request from from a national network for permission to use some of our clips from Fighting for Our Lives for a new documentary on the AIDS epidemic that’s being produced. As with past requests for footage, I will say “yes” because I do believe that there’s value in sharing the precious pieces of history we recorded during the height of the AIDS epidemic in the 1980s. However, if someone grabbed bits and pieces of our documentary without bothering to ask, I would not be pleased.
Over the years respect for the work of creators has been undermined by an online ecosystem where anything digital is assumed to be ripe for the picking. Those who routinely rail against creators and copyright are saying the Lenz case decision didn’t go far enough, but I would flip it around and propose that the court should have asked whether YouTube users “unambiguously contemplate” whether a clip would infringe someone’s copyright before uploading content to the site?
When I teach my film students about copyright I start by asking them if any of them have ever downloaded music or movies from the internet. Not surprisingly, most sheepishly raise their hands. However, as the semester progresses and they learn that it will be their workthat’s at stake, perspectives gradually shift. My students realize their work has value and the effort that went into creating should be honored.
Perhaps if we stop justifying our lack of respect for creators by demonizing the business of creation ( i.e. the record companies and Hollywood studios) and start appreciating (and rewarding) the work done by creators–both individually and collectively–we won’t have to depend on courts to determine what’s fair.
The DMCA is a dated and dusty law and puts an undue burden on creators, but until Congress takes action, it’s the only tool creators have to protect themselves.The silly dancing baby clip in question was actually allowed to remain on YouTube after a counter-notice was submitted because the creaky system had actually worked as intended….much ado about nothing–save for the fact folks at the EFF saw an opportunity to further their anti-copyright agenda.
Has this decision made it even harder for artists to compete in the digital age? Perhaps–but for me, and probably most everyone else, it’s merely business as usual. I’ll continue to consider fair use before I send that takedown notice on YouTube (or elsewhere) and in doing so, give more thought to the process than those (who routinely flout copyright law) do at the other end.
As an indie film and broadcast journalism veteran, I'll share my perspectives on issues of interest to the creative community and beyond--Ellen Seidler
A conversation with Will Buckley about artists’ rights and efforts to update the DMCA
and careers.” 
Buckley’s latest effort to protect the rights of artists in the digital age is the newly launched Take Down, Stay Down petition campaign to Congress. The petition aims to “Restore an artist’s right to determine what happens to their work on the internet,” by asking Congress to update Section 512 of the Digital Millennium Copyright Act and close the safe harbor “loophole” in the DMCA by adding a “stay down” provision.
WILL: Everyone who signs the petition will be sending a letter, signed by them electronically, to every member of the House Judiciary Committee instructing Congress to amend Section 512 Takedown Notifications to include a ‘stay down’ provision. 
