Intellectual Property in the YouTube Era: The Justin Bieber Problem

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Oct 27, 2011

Article ImageThe recent proposal of the Commercial Felony Streaming Act, and the uproar over the potential it holds to send artists like Justin Bieber to jail for copyright violation, has put the subject of intellectual property and copyright on the front page. The following is an excerpt from a chapter in the book, Dancing with Digital Natives: Staying in Step with the Generation That's Transforming the Way Business is Done. The full chapter is titled: "Ethics, Technology, and the Net Generation: Rethinking Intellectual Property Law" and is written by Albert M. Erisman. The book is available on Amazon, Barnes & Noble, and other retailers in e-book and print format.

Ethics, Technology, and the Net Generation: Rethinking Intellectual Property Law

Illegal content-copying is nothing new. In the 1970s, I visited a friend's home in Budapest and noticed he had a two-volume mathematics text by an author I knew. I expressed surprise to see it in two volumes, because I had always seen the book in one volume. Then he showed me that it was in fact a one-sided copy, nicely bound (although the title was misspelled on the second volume) and available for purchase in Budapest. As I thought about that book, I realized the copy had been expensive to make and bind. Perhaps as expensive as buying a new copy at a book store. The reason the book was available in this bulky format was because original copies were simply not available in Hungary at that time.

Today we see the same scenario played out but with some important differences. In the digital world, copying and shipping a book, music, or video in digital form is both instantaneous and free. In the case of the book in Budapest, there was no monetary motivation to make such a copy, only a motivation based on lack of availability. In the digital world that natives inhabit, there is a huge monetary difference.

Chris Anderson makes the following point in his book Free (Hyperion, 2009): When digital technology makes it possible to make and distribute copies instantly at effectively no cost, the world becomes a very different place. In spite of the clear illegality of this behavior, piracy is rampant in all parts of our world, particularly among digital natives. There are many reports indicating that file sharing of music and games is commonplace and that many do not see the activity as being wrong. Statements like, "Everybody does it," "I can't afford to buy it," or "I am only testing it and will perhaps purchase the music if I like it" are commonplace and used to validate the behavior. Yet the artists don't get paid and publishers who invested in the projects don't get paid either.

Regardless of whether it is easy, it seems right, or everybody is doing it, it is hard to make the case that such file sharing is ethical. We can't get past the first question in an ethical test: Is it legal?

YouTube: I Mix, You Mix, We All Remix

In 2005, YouTube was founded by three former employees of PayPal to enable anyone to share videos with the world. We have now moved from sharing protected content to creating content. However, it is the way some of this content is created that causes it to run up against the law again. With a $1,500 computer and free or inexpensive software, anyone-not just professionals-can combine video and music into new art forms called remixes or mash-ups.

The basic idea is to combine music from one or more artists into a new mix, often including video content from films and news sources, to make a statement that none of the pieces was originally intended to make. My favorite example of such a remix is the video of George W. Bush and Tony Blair singing "Endless Love" to each other. You can find it by Googling "Bush, Blair, Endless Love." It is the work of an amazing editor who managed to match the lip movements of the protagonists (Bush and Blair) in clips lifted from the news and combine the video with the song. It is an incredible demonstration of what can be done relatively simply today, though it could have only been done by professionals with very expensive equipment less than a decade ago. It is also illegal, because the individual pieces from which this video is made are private property.

Problems with Intellectual Property Law

Now here is the challenging issue: We would say it is unethical to create such remixes because we can't get past the first ethical question, "Is it legal?" In some of these areas at least, the digital native's behavior may well pass the appropriateness test, "Is it appropriate?" For many, the "mom" test for this question would be no problem: Mom either doesn't care or thinks it's as funny as we do. The question to ask is whether we are in a situation where the law protecting digital content is outdated because of the digital technology currently available.

Lessig (Remix, 2008) and Anderson (Free, 2009) argue "yes." Lessig says that we have reached the point where there is a growing divide in our societies. On one side are those who would vigorously defend the laws already in effect. To support these laws, products are being developed to find and track down anyone who posts a video to YouTube containing any copyrighted material. There are products for identifying file sharers as well. There is a growing effort in both America and Europe to prosecute violators, many of them digital natives. On the other side is a generation that is increasingly thumbing its nose at the law. Digital natives may or may not be consciously choosing to live their lives beyond the law, but the fact is that more and more of them are doing so.

Anderson makes the point that digital content "wants to be free." We need a new model, he says, where digital recordings are used for promotion, not for sale. Digital files (music videos, for example) would be a form of advertising for the artists, who would make their money from concerts and other sales rather than from the digital content.

Not everyone agrees with these proposals. One author holding out for the existing law is Jaron Lanier, one of the founders of the artificial intelligence movement in computer science. In his book, You Are Not a Gadget: A Manifesto (Knopf, 2010), he calls for greater protection of digital rights on the basis that the loss of these rights will stifle the creative work of many artists.


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