Whither Fair Use?

“Fair Use” Photo by Lawgeek

I have been unable to get Henry Jenkins’s post “Why Universities Shouldn’t Create “Something like YouTube” (Part One)” out of my head for the last two weeks. I keep on returning to his candid and precise discussion about the “very timid and conservative legal approach” MIT’s Open Courseware takes towards Fair Use. And his argument is dead on, how can he “package” a course that deals with a precise, practical, and theoretical discussion of our mediated culture if he can’t share and re-contextualize the very media that is the basis for his course of study? And what Jenkins suggests about his own concerns with the Fair Use doctrine at MIT, must also be the case for a large number of professors around the world who need to “meaningfully quote and re-purpose existing [copyrighted] materials” in order to do their job effectively.

Yet, many have turned their attention to Creative Commons licensing, and there can be no question that this is a monumental victory in the increasingly war-like world of negotiating copyright. The fact that their have been so many images, texts, articles, and videos that have been produced under this license should be applauded roundly. At the same time, as Jenkins notes in Part 2 of this article, we still “need to be able to provide excerpts from other people’s media — especially corporate media,” resources that almost always would not be licensed for re-use with attribution, etc. And this is where the opportunity to buttress the power and impact of Fair Use has failed, we have focused so much energy on pushing folks to license their own work as Creative Commons, that the discussion surrounding Fair Use has waned to the point that sometimes I even forget it is still a viable option. So his Jenkins’s position as a “conscientious objector” to the Open Courseware project is important because it frames, at least for me, that K-12, Colleges, and Universities avoid the discussion around Fair Use at their own intellectual peril, and basically cede an amazing amount of control to the existing “intellectual property regime,” which just seems to continually get more and more powerful. Moreover, his position suggest that their is a fight to be taken up around Fair Use, yet it is one that most people have avoided because it’s too thorny, or the legal battles would be too expensive, or it’s just not “expedient at this juncture.” Well, I can’t think of a time when we need it more!

Do you remember the Library of Congress exemption “allowing film and media studies professors to create digital clips from legally-obtained DVDs housed in college and university libraries” as long as they are used in the classroom or on electronic courseware sites and “restricted to matriculators and measures are taken to thwart copying and downloading of the material.” And while all of this seems kind of quaint now that YouTube has exploded since 2005/2006 when this exemption was made, it still highlights the very real limitations upon Film and Media Studies faculty to quote the medium they inhabit and depend upon for discussion and analysis. Not to mention the fact that even when a faculty member takes clips from a DVD, for example, it is not entirely clear whether or not they are breaking the law given the uncertainty around the legality of breaking encryption in this instance. More importantly, how do you define a matriculated student in an open course? Does such an exemption have any relevance in the digital age of education? The whole thing is a copyright fueled legal nightmare, and has effectively made the critical analysis and discussion of our culture’s media that much more precarious and anxiety ridden. What we have is a direct competition between the Media Industry’s attempt to secure the largest percentage of profit and the academic mission to openly analyze, quote, and share media within a more nuanced argument or conceptualization of a given culture. And all of this doesn’t even speak to the numerous academic disciplines outside of Film and Media Studies that may depend on contemporary media to some large degree for examining our world.

But as I noted above, sites like YouTube kind of make this exemption seem dated, for video sharing sites provide an invaluable archive of contemporary (and not so contemporary) commercials, movies, TV shows, news, etc. And while the question of copyright is very much present there, it always seems like its someone else’s problem—it’s kinda like the masses have finally found a way to utilize the corporate strategy of creating a vanishing horizon of accountability. Almost by the simply unfathomable number of people, amount of redundancy, and pure voume of resources. All of this compounded by the anarchic ability for anyone to upload anything from anywhere goes a long way towards allowing people to depend upon a kind of transparent, but unspoken, “ungerground bazaar” for Media Studies resources (as well as every other academic discipline under the sun). And what’s more, the ability to re-contextualize clips with embed links exonerates professors and/or students from questions of copyright abuse while at the same time allowing them to frame clips within their own discursive space.

And while this doesn’t attend to the staggering limits in thinking about Fair Use in any kind of  progressive way at educational institutions throughout the US, I do think it bleeds into another point Jenkins made quite nicely when he was talking about the mistake of universities trying to build “something like YouTube.” He points out that universities are often focused on locking down and controlling content, whereas YouTube became hugely successful for the exact opposite approach –it is open to anyone, video can be embedded on other sites, and (thanks to Firefox extensions like Download Helper) the archive can be preserved despite the fact that it is ephemeral 🙂 So what would a system look like on campus that actually afforded the community the power to harness and share eductional resources on the open web? They would need the option to embed media from around the web on their own university space. They would need to be able to make their discussion and work public if they wanted to. Or, what’s more, be able to export their work to another service off-campus, and share it back from there. In other words, educational institutions need to manage the flow of digital ideas from where ever the comunity is working from rather than attempt to build and control such a space. And this ideas is at the heart of what Jenkins suggests most educational institutions have failed to recognize “university based sites are about disciplining the flow of knowledge rather than facilitating it.” And that is the problem, but there are some examples of alternatives, UMW Blogs is using WordPress Multi-User as an open, web-based publishing platform for its academic community and Bill Fitzgerald’s has modeled an impressive feed centered framework using Drupal. These spaces facilitate, rather than dictate, the incorporation of myriad resources on the web into a dynamic, syndicated environment which is premised on providing an open experience for the community as much in action as in theory and principle. It’s a space anyone on campus can add their outside feed, and have their work re-published into a course space, club space, discussion space, portfolio, etc. Point being, sometimes I think the idea of consortiums and study groups and inter-campus organizations for deciding the future of open education (not to mention building the repositories) is besides the point, and Scott Leslie’s work with Free Learning points the future out for us there, talk about sustainable! Just look at YouTube or Wikipedia or what was TextBook Torrents. Universities should be facilitating the sharing of open educational resources and fostering discussion and examination around them in a dynamic manner. I think openness (whether de jure or de facto) is already apparent on the web, and that is readily apparent for anyone familiar with sites like YouTube. The thing is we just can’t name it is such. However, if and when we start reclaiming Fair Use from the lawyers a bit more vigorously, perhaps we can start capturing dynamic interactions and streams of conversations and ideas rather than course skeletons, handouts, syllabi, and video lectures.