Free Culture v. Free Ride
“If you copy a book, an album, a movie, how do creators make a living? This is the question commonly accompanied by the statement ‘Copyright is necessary! Creators have to be protected” (Uriel, D., 2013)
Not for Lessig. Within the music industry, for example, the attorney argues that claims that file-sharing equals to stealing a physical CD are not valid. When someone illegally downloads a song or ten, the physical album is still in the store. But doesn’t that mean the album will remain in the store and the artist will not receive the money from that missed purchase?
According to the attorney and studies carried out in years prior to the rise of streaming services, people who illegally downloaded songs tended to do so as a means of “test driving” the product. If they liked it, they proceeded to make a purchase.
Business journalist, Robert Levine, on the other hand, believes that the provisions within the Copyright Law provide a loose enough legislation to allow for public use. One of these doctrines is the fair use (US)/fair dealing (UK) one, “based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism” (fairuse.stanford.edu).
But does it really work?
“Fair use” in practice
Jon Else, independent documentary maker working on a piece about stagehands:
Else had a 4.5 second clip of The Simpson playing on a television in the background of a scene and had to ultimately change it to a clip to which he held the rights.
Although that minimal clip would theoretically fall under the “fair use” provision, Else was instructed by lawyers to seek permission to use it. The Simpsons’ copyright holders, Fox, charged him the ludicrous amount of U$10.000 for a license, which Jon, as an independent filmmaker, did not have. Were he to use the clip without permission, Fox, as a big, powerful corporation, would, in the words of his lawyers, “depose and litigate [him] to within an inch of [his] life”. (Lessig, L. 2006)
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Viacom v. YouTubeAlthough Lessig and the “free culture” advocates can argue that websites like YouTubeare a platform that is also used by people sharing their homemade works out of freewill and other either non-copyrighted or permitted materials, these same services “need professional content to build a viable business” and these aggregators draw audiences away from sites that pay to provide programming, driving down the price for advertisingbecause their [YouTube and such] costs are low, thus, making it harder for the actualcontent producer to broadcast their own material competing with the other advertisingrates (Levine, 2011 pg.36).According to YouTube employees, “more than three quarters of the site’s views came from copyrighted content […] programming other companies paid to create” (Levine, R. 2011 pg.33). After Viacom’s lawsuit against YouTube in 2008, the broadcasting service startedmonitoring and filtering its uploaded content to remove copyrighted material from itswebsite and “has partnership deals with thousands of content providers who share ad revenue” (Levine, 2011 pg.97).Viacom has recently entered the streaming business too (billboard.biz, 2011), which seems to suggest the same theory Lessig uses to describe the RIAA’s argument againstwebcasts that says they [RIAA] “don’t really model this as an industry with thousands of webcasters, we think it should be an industry with, you know, five or seven big players who can pay a high rate and it’s a stable, predictable market”.In the LawProfessor’s words “the aim is to use the law to eliminate competition so that this platform of potentially immense competition, which would cause the diversity and range of content available to explode, would not cause pain to the dinosaurs of old” (Lessig,2004 pg.199).The old media businesses do not seem opposed to the development of technology and new distribution platforms; they just don’t want someone else fiddling with it besides themselves.