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admin — 2012-08-27T14:17:05Z

DMCA Exemption Hearings Draw to a Close

Critical Commons Manager — 2009-05-08T17:50:00Z

Today was the last day of hearings on proposed extensions and expansion of exemptions to the Digital Millennium Copyright Act for classroom uses of copyrighted media. The Copyright Office, which grants three-year exemptions to the law, heard four days of testimony regarding a range of proposed exemptions and will issue a decision in October 2009. The exemptions under consideration include an extension of the current dispensation allowed for media studies instructors to break the copy-protection in DVDs. A proposed expansion of the educational exemption would permit students to also break encryption in order to use video clips for the purposes of "video essays" or media analysis and would extend the current exemption to instructors in other disciplines as well. Among the exemptions proposed by the Electronic Frontier Foundation was an allowance for the makers of remix videos to rip media from DVDs in order to create "fan vids." Complete audio transcripts of the hearings are available online.

Representatives of the copyright and DRM industries expressed little opposition to continuing the current exemption for media studies, but requested narrowing, rather than expanding, the range of circumstances covered. The proposal to extend the exemption to student work proved particularly volatile from the perspective of the MPAA, which voiced its concern that allowing students to break CSS encryption would make it a norm rather than an exception. By far the most amazing event of the hearings came when the MPAA's Fritz Attaway and Dan Seymour argued that, while the industry agreed that movie clips are an important teaching tool, reasonable alternatives are available that do not require breaking CSS. To prove their point, Seymour showed a video demonstrating a method of creating a compilation of video clips by aiming a camcorder at a flat screen monitor in a darkened room and recording a series of clips in sequence. The video, which has subsequently been circulated online, was met with incredulity and derision by commentators both in the hearing and in online forums. Although they did their best to defend the viability of this method of analogue capture, industry representatives refused to address the less ludicrous alternative of software-based analogue capture using programs such as Snagit or Snapz.

The USC School of Cinematic Arts was mentioned briefly during the testimony by Peter Decherney, who responded to claims by the MPAA that it was in talks with the school to create a specially selected library of clips that would be licensed for use in film studies classes. Even if it were not an absurd proposition pedagogically, this permission-based alternative to the core fair use protection on which media teaching (and indeed Critical Commons itself) is predicated, however, remains hypothetical and was dismissed as irrelevant to the current exemption hearings. Of particular significance to the work of USC's Institute for Multimedia Literacy was an impassioned testimony by Renee Hobbs, who spoke on behalf of media literacy educators. Echoing many of the IML's core commitments to developing analytical sophistication among students who function as both producers and critical consumers of media, Hobbs argued that it was imperative for students to work with audiovisual materials as part of the process of thinking critically about media at every level including K-12 up through higher education. Hobbes closed by quoting Umberto Eco: "The language of the image must be a stimulus for critical reflection not an invitation to hypnosis."

Best Practices in OCW

Critical Commons Manager — 2012-08-27T11:06:22Z

Educause Live

Critical Commons Manager — 2012-08-27T11:06:22Z

Center for Social Media releases Code of Best Practices for Media Literacy

Critical Commons Manager — 2009-04-13T14:45:00Z

The Center for Social Media continues to radically intervene in debates over copyright and fair use with this extraordinarily well-researched and clear-headed guide to fair use for media literacy educators. It's difficult to imagine a field that is more dependent on fair use and, especially in K-12 education, more inundated with bad information about fair use. This guide gently but insistently debunks the culture of fear and overstatement that has accompanied previous efforts to define best practices, while highlighting five fair use contexts that are crucial to the robust functioning of media literacy education. We regard this guide and, indeed, each of the previous Best Practices guides from CSM, as required reading and we cannot recommend this work to you highly enough: Best Practices in Fair Use for Media Literacy Education

Critical Commons launches April 17, 2009!

Critical Commons Manager — 2009-04-13T15:50:00Z

Immediately after its unveiling at the DML winner's showcase, Critical Commons will be fully live and open to the public. Our team of developers in Australia, EngageMedia, are currently putting the finishing touches on the site architecture and user interface, while beta users have begun to feed video clips and commentaries into the database. The site was architected, designed and built in record time and we are very excited to see how it holds up under what we expect to be very heavy initial usage. Already, we are having to turn away requests from educators from around the country who are wanting to try it out. The countdown to launch begins!

Critical Commons partners with Open Video Alliance

Critical Commons Manager — 2009-04-13T15:50:00Z

Critical Commons took part in the inaugural meeting of the Open Video Alliance at Yale University Law School, in what promises to be a productive collaboration among technologists, legal experts and maker communities. The day-long session was organized by the Participatory Culture Foundation (creators of Miro, an online videosharing tool) together with Kaltura, the open source video platform.

Hosted by Yale Law's Information Society Project, the OVA meeting markede the launch of an ambitious agenda of cultural, legal and technological transformation around online video. With nearly 30 international organizations represented, the OVA set an agenda for action beginning with a declaration of principles composed by stakeholder communities, articulating goals for how video can and should be created, circulated, remixed, preserved and accessed, all using open source tools, standards and formats.

The list of contributors read like a who's who in participatory culture, including organizations such as the Center for Social Media, Creative Commons, Mozilla, Wikimedia, Electronic Frontier Foundation, EngageMedia and the Open Society Institute. Throughout the day, spirited discussions and working groups focused on issues ranging from intellectual property and fair use to the technological and cultural challenges of shifting everyday practices away from commercial software to a still-emerging array of open source alternatives. As difficult as some of the challenges are, the need for such a transformation and the centrality of video as an expressive form in today's culture was echoed throughout the day. With its focus on video as a tool for learning and the importance of a robust conception of fair use for educators, Critical Commons hopes the alliance will contribute to a much needed shift toward greater openness, access and media-enriched learning both in and out of academia.

The Open Video Conference will take place at NYU Law School June 19-20, 2009. For more details, please visit the conference website.

Center for Social Media Publishes New Code of Best Practices in OCW

Critical Commons Manager — 2009-10-25T16:55:00Z

The Center for Social Media (CSM) at American University has released another of its important Codes of Best Practices in Fair Use, this time, as it applies to the historically vexing realm of OpenCourseWare (OCW). Like previous guides focusing on Documentary Film, Media Literacy Education and Online Video, the new OCW guide is unafraid to engage arcane and difficult legal issues, while simultaneously managing to be highly readable and of immediate, practical use by educators seeking to make informed, ethical decisions about fair use.

The OCW consortium originated at MIT in 2002 and has become one of the most widely known and influential bodies of open academic resources worldwide. The MIT initiative famously achieved a near 100% participation rate among faculty members for whom contribution of their course materials was entirely voluntary, though strongly encouraged by the MIT administration. Interestingly, one of the few faculty dissenters was Henry Jenkins, then Director of MIT's Comparative Literary Studies program and himself an outspoken advocate of open education and networked learning. Jenkins' surprising refusal to participate in OCW marked an act of civil disobedience, designed to call attention to his belief that the consortium's approach to questions of fair use was overly conservative. In an effort to avoid any controversy over copyright issues, the OCW maintained a near zero-tolerance for copyrighted content in its online resources, forcing them to focus a large percentage of their efforts on identifying and removing copyrighted materials from online course content (often to the detriment of learners), even when fair use might readily apply as defined in the new Code of Best Practices.

The OCW guide opens with a section devoted to "Common Copyright Confusions" designed to dispense with some of the more obvious misunderstandings about what is allowable in open courseware contexts. The guide goes on to describe a number of specific situations and the principles by which a reasonable decision about fairness of use might be made. Since all determinations of fair use are radically dependent upon context and specifics, there is never a one-size-fits-all answer to any question of fair use, and the guide offers insights into some of the most likely situations that an OCW educator might face.

The new guidelines echo several of the now familiar categories of reproduction including incidental capture, critique and analysis, illustration, etc., while delving specifically into issues of particular relevance to OCW educators. Here, the guide offers welcome relief to those who may previously have only tried to satisfy the extremely conservative parameters of the TEACH Act in defining what constitutes classroom teaching and the technological limitations that must be in place to accommodate online learners. Unlike the TEACH Act stipulations, which presume piracy is the most likely outcome of allowing access to learning materials, the CSM guidelines proceed from a commitment to learning and richness of content as values to be respected and encouraged within the allowable limitations of legitimate copyright holders' concerns -- particularly those for whom the educational market is a primary motivation.

As we approach an upgrade and relaunch of Critical Commons, we are particularly excited about the guidelines offered by this current code of best practices. Although it was not originally conceived as open courseware, the features and beta applications of Critical Commons increasingly seems to suggest a powerful role in support of distributed education. We are grateful for the perspectives and insights offered by the Center for Social Media in thinking through these issues on behalf of online learners.

Critical Commons at Open Video Alliance

Critical Commons Manager — 2009-12-28T20:16:21Z

In this five-minute video, Critical Commons founder Steve Anderson sketches the origins, goals and context of the project for attendees at the 2009 Open Video conference at NYU. During this "lightning talk" Anderson characterizes Critical Commons as carving a space for educators, librarians and cultural producers to understand and assert their legal rights under fair use. Although the project was inspired by legal experts Peter Jaszi and Lawrence Lessig and the work of organizations such as the Electronic Frontier Foundation and the Center for Social Media at American University, Critical Commons aims to educate and empower non-specialists in vigorously exercising and advocating for the expansion of fair use.

Lessig on Fair Use

Critical Commons Manager — 2010-03-12T10:35:00Z

Two excellent illustrated lectures by Lawrence Lessig have gone online (and were also amusingly taken down thanks to the automated DMCA trolls from Warner Music Group) in recent weeks: one from Lessig's address at TEDxNYED last weekend in New York; another from last month's "Wireside Chat" organized by the Open Video Alliance. The two talks include some duplication of examples, but, in combination, give evidence of a significant shift in Lessig's thinking about fair use. A few years ago, when we were first conceiving of Critical Commons, Lessig's negativity about fair use rang loudly in our ears -- his oft-repeated statement that "fair use is the right to hire a lawyer" -- hardly seemed like a principle worth fighting for, but his preference for the tiered licensing of Creative Commons was of no use to educators wanting to teach with copyrighted media. It was only after a subsequent talk by American University's Peter Jaszi, the legal mind behind the Center for Social Media's Best Practices in Fair Use guidelines, that we decided to move forward with the project, focusing on the advocacy and expansion of fair use. Lessig's current, pro-fair use stance seems to be motivated in part by the fact that court decisions have been weighing heavily and consistently in favor of fair use these days. In his typically erudite fashion and signature style of wryly synchronized keywords and graphics, Lessig celebrates the emergence of remix cultures across the internets, likening it to the kind of shared, non-commercial cultural production that is characteristic of pre-industrial societies. Lessig also links the power of remix to a commitment to free code and free codecs. But in the end his real message was about politics. Sidestepping the polarization of the liberal/conservative binary, Lessig makes the case for conservatives as agents of support for common culture; citing the abysmal record of democratic politicians in enacting substantive legislative change. Indeed, Lessig's key argument was to support political action in congress rather than rely on the courts and to continue to enrich culture via fair use.

H5's Logorama: Best Animated Trademark Dilution

Critical Commons Manager — 2010-03-12T11:45:00Z

The French design firm H5 has been responsible for some of the most remarkable graphics-oriented music videos and short films of the past decade and their Logorama, which won the Academy Award for Best Animated Short Film is no exception. In order to be eligible for the Oscar, Logorama screened briefly in Los Angeles last December as part of the Flux festival and I read about it for the first time on Holly Willis' Blur+Sharpen blog on KCET. Since fair use does not apply to trademark appropriation, it was hard to imagine how H5 got away with trashing literally hundreds of icons of Euro-American consumer culture. The answer lies in trademark law's relatively narrow concern with brand identification and prevention of confusion among consumers. Ironically, the very audacity of H5's appropriation would seem to ensure that no reasonable consumer could believe that Logorama's profane, hyperviolent Ronald McDonald was associated in any way with the McDonald's corporation. Sadly, both H5's website and the Logorama site include only the opening sequence of the film (less than two minutes of the complete 16 minute short), accompanied by a perky, nostalgic Dean Martin crooning "Good Morning Life" which belies the shooting, earthquakes and general destruction that ensue.

Of Memes and Media Takedowns

Critical Commons Manager — 2010-05-02T10:10:00Z

As a recent contributor to the "Hitler meme" genre of detourned video parodies of the movie Downfall, I was inspired by the recent Rocketboom video with Kenyatta Cheese, describing the steps to challenge a YouTube takedown. Rocketboom, in turn, was motivated by the recent wave of takedowns ordered by Downfall producers, Constantin Films, which resulted in the removal of hundreds of Downfall parodies, mine included. Critical Commons' contribution to the Hitler meme Digital Humanities and the Case for Critical Commons was created to publicize the relaunch of this site and its promotion of fair use of media by educators. I was contacted by Alison Hanold of the Center for Social Media at American University, who was writing an article about YouTube's takedowns of the Hitler videos and she generously included my my thoughts about the Downfall takedowns:

I found the latest round of Downfall takedowns to be unfortunate and poorly timed on the part of Constantin Films, which is now being subjected to disproportionate resentment and vilification. I’m not saying they shouldn’t be criticized, but there are many other much worse offenders among the copyright industries’ takedown trolls and it’s toward them that our real outrage should be directed. The shock-and-awe strategies that have been favored by members of the MPAA and RIAA for the past decade have had an impact on some people’s behavior and it has instilled fear and paranoia in many others. But, like military shock-and-awe campaigns, it’s short-sighted and ultimately counter-productive. The longer-term impact of such mass takedowns is organized resistance and legal efforts that will ultimately have a greater cost to the media industries than a mere public relations nightmare. Creators, students, educators, vidders (etc.) have unprecedented resources and support at their disposal in the form of the CSM’s Best Practices guides and a growing body of court decisions supporting fair use. Indiscriminate takedowns that ignore the legitimate protections of fair use are just as illegal as commercial piracy and it’s time for the industries to start being held accountable for their actions.

In retrospect, I think the real issue here is not the actions of Constantin Films, a relatively small player who has been swept into the current copyright wars, but the resulting wave of awareness about YouTube's use of automated takedown systems, including ContentID, which was used by Constantin to order the Downfall takedowns. Of course, none of this is intelligible outside the context of the current Viacom v. YouTube litigation, which could significantly undermine current interpretations of the DMCA safe harbor clause that made YouTube a billion-dollar company and made online video a key part of the cultural vernacular for millions of creators. While automated takedowns and "fingerprinting" systems that sniff for copyrighted content while a file is being uploaded may have once seemed like the silver bullet to fight unauthorized uses of copyrighted materials, such systems are incapable of making nuanced determinations about the fairness of a given use. It will be no small irony if these automated measures, intended to deter and intimidate even legitimate users, turns out to be the "downfall" of the copyright industries' last-ditch efforts to hold onto a fading business model.

Fair Use and Short Form Media

Critical Commons Manager — 2010-11-23T17:20:00Z

Questions sometimes arise about the fairness of a given use on Critical Commons. Although we cannot give specific advice (and we are unqualified to give legal advice of any kind!), it is worth thinking through some of these questions in light of this site's desire to inform and empower individuals to make their own determinations about fair use. For example, a user recently asked whether the uploading of a complete short-form work might not run afoul of fair use.

The first stop, when thinking through any question of fair use is to consult the Center for Social Media's excellent series of Best Practices in Fair Use Guides, one of which is specifically devoted to online video. In this guide, titled Recut, Reframe, Recycle, we find the following discussion of complete works that are posted for purposes of eliciting discussion:

"So creators who copy work occasionally to start discussion still may be able to claim that their use is transformative, and therefore fair. To do so effectively, they need a reason why it is important to post the work in question as a whole, rather than just a quotation from it." (11)

According to the standard logic of the four-factors test, posting a complete work weakens a fair use claim, relative to posting only a fragment (Factor #3). This comes up often with short-form works such as ads and music videos, both of which are frequently and productively posted on Critical Commons.

It is arguably true that fair use is deliberately elastic in order to accommodate exactly these cases. The core rhetoric among proponents of fair use is that there is no categorical problem with complete works if using the entire work is necessary for your argument. This is a judgment call, which places a greater responsibility on the poster, but it is arguably still vastly preferable to the kinds of guidelines issued in the past by CONFU and others that are based on arbitrary time limits or percentages. The rule of thumb these days says to use as much of a given work as is necessary, but avoid using more if it doesn't help your argument, which seems like pedagogically sound advice as much as fair use advice.

The other thing that weighs in favor of fair use with regard to ads and music videos is that the original purpose of these works is promotional in nature, thus there is little or no "market value of the original work" to damage (Factor #4).

But really the key issue here is Factor #1, which places this and most of the work done by users of Critical Commons on very solid ground that is close to the heart of fair use. If a use is non-profit, educational, value-adding, culturally enriching, and significantly transformative through the juxtaposition of the clip and commentary, this weighs heavily in favor of a use being regarded as "fair" even if it requires the posting of an entire short work. All of that said, please remember that the decision to post or not post a work under the protections of fair use lies entirely with the users of this site and we encourage you to approach this responsibility seriously.

Critical Commons on Educause Live!

Critical Commons Manager — 2011-02-25T15:35:00Z

The webcast recording of Steve's presentation to Educause Live! on February 25, 2011 just went online. Although the title of the talk, "The Future of Fair Use" may have been a bit oversold, it was an amazing opportunity to speak on behalf of fair use to hundreds of higher ed professionals nationwide. For those who don't have an hour to spare, the basic message is that non-specialists (educators, librarians, media makers) can and should contribute directly to the shaping of an assertive, ethical future for fair use. Citing the groundbreaking work done by the Center for Social Media's best practices guides, the presentation also highlights Critical Commons as a case study of a fair use-enabled platform for promoting digital scholarship, teaching and research. The presentation sparked a lively discussion among the Educause community and a huge spike in traffic to Critical Commons. Thanks to Steve Worona of Educause for giving us this opportunity!

Critical Commons on Inside Higher Ed

Critical Commons Manager — 2011-03-15T10:20:00Z

Steve's talk on fair use for Educause Live! last month was picked up by Rodney Murray for his monthly podcast at Inside Higher Ed, "The Pulse." Murray nicely excerpted and highlighted parts of the talk pertaining to obstacles and solutions for educators using copyrighted media (even though he left out the more self-serving parts of the presentation that focused on Critical Commons as an alternative to proprietary learning management systems!). So if you only have 20 minutes to spend thinking about fair use instead of 60, you can get the audio from Inside Higher Ed while exploring the contents of Critical Commons.

updates

admin — 2012-09-11T12:51:07Z

Fair Use

admin — 2012-09-11T13:11:00Z

Pulse logo

Critical Commons Manager — 2012-09-15T14:40:15Z

Resources

admin — 2012-09-18T12:15:00Z

Critical Commons 2.0 is live!

Critical Commons Manager — 2012-10-04T19:20:00Z

Thanks to the extraordinary efforts of our project manager Anna Helme, Creative Director Erik Loyer and site developers, the Greek software collective and Plumi Jedi, UnWeb.me, Critical Commons 2.0 is now live! Although this release sees the demise of our infrequently used mobile site and audio commentary feature, it adds significant improvements to the overall functionality and stability of the site. Most exciting is the addition of still images and audio files to the media types that Critical Commons supports. You will also find it much easier to add commentaries to clips and to share media and commentaries with your social networks.

Center for Social Media releases Code of Best Practices for Research Libraries

Critical Commons Manager — 2012-10-04T19:45:00Z

The Center for Social Media has released a new Code of Best Practices in Fair Use for Academic and Research Libraries. This new code, which joins the suite of other fair use codes, was developed by librarians and facilitated by the Center for Social Media, the Association of Research Libraries (ARL) and The Washington College of Law. It was supported by a grant from The Andrew W. Mellon Foundation. The code is a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education.

The Code deals with such common questions in higher education as:
When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
How can libraries’ special collections be made available online?
Can libraries archive websites for the use of future students and scholars?

It identifies the relevance of fair use in eight recurrent situations for librarians:
Supporting teaching and learning with access to library materials via digital technologies
Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
Digitizing to preserve at-risk items
Creating digital collections of archival and special collections materials
Reproducing material for use by disabled students, faculty, staff, and other appropriate users
Maintaining the integrity of works deposited in institutional repositories
Creating databases to facilitate non-consumptive research uses (including search)
Collecting material posted on the web and making it available

Center for Social Media releases Code of Best Practices for Research Libraries

Critical Commons Manager — 2012-10-04T20:05:00Z

• When and how much copyrighted material can be digitized for student use?
• Should video be treated the same way as print?
• How can libraries’ special collections be made available online?
• Can libraries archive websites for the use of future students and scholars?

It also identifies the relevance of fair use in eight recurrent situations for librarians:
• Supporting teaching and learning with access to library materials via digital technologies
• Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions
• Digitizing to preserve at-risk items
• Creating digital collections of archival and special collections materials
• Reproducing material for use by disabled students, faculty, staff, and other appropriate users
• Maintaining the integrity of works deposited in institutional repositories
• Creating databases to facilitate non-consumptive research uses (including search)
• Collecting material posted on the web and making it available

Image sound relations from Jeremy Butler

Critical Commons Manager — 2012-10-04T20:31:00Z

This series of clips presents a Do-it-Yourself Sound Exercise from Jeremy Butler's book Television: Critical Methods and Applications. A 2-minute, public-domain TV commercial (circa 1960) is combined with various music clips to demonstrate the impact sound has on image. Students are encouraged to provide their own music to see how the image can be manipulated.

Anita Sarkeesian's Feminist Frequency

Critical Commons Manager — 2012-10-04T20:35:14Z

Feminist cultural critic Anita Sarkeesian produces an ongoing series of video commentaries from a feminist/fangirl perspective at FeministFrequency.com. This collection of video clips and commentaries analyze the gender politics of TV shows ranging from Roseanne, to Gossip Girl, Veronica Mars, Fringe, Glee and Terminator: The Sarah Connor Chronicles.