[Videolib] Public performance rights question

Jed Horovitz (JedH@internetvideoarchive.com)
Wed, 22 Sep 2004 12:55:36 -0400

Marc,

I don't think two wrongs (bad laws and ignoring the law) make a right.
That's why I think the law should be changed. The problem with relying on
lax self enforcement by copyright owners is that you and Jessica and Dennis
are likely to be ok with some sampling of your works or if not ok, to at
least recognize that the sampling might be a fair use. Disney Corporation
(I have this first hand unfortunately) does not believe that any use is
fair. In a world culture based on media, we can't afford to let the Rupert
Murdochs make the rules. I believe I am arguing for the rights of creators
to find new uses and make new stuff (and thus Jessica's and Dennis's rights
to buy and distribute)from the media fabric around us. I have never said
we live in a totalitarian state, I am saying that left unchecked, we are
heading towards one via privatized censorship via copyright regulations.

Your example exhibits the prejudice I am concerned with in that you assume
the t-shirt is not a political, artistic statement but simply a rip off. I
think we should assume it is protected free speech (art, business, pursuit
of happiness, etc.) unless and until Disney proves other wise. That is all
it would take to level the playing field between new/future users/creators
and owners of existing creations.

This logic applies to performance rights as well as to sampling. Would you
have the Anime group watch the videos alone at home by passing around the
(hopefully legal) copies and then meet to discuss? What's the point? The
'face to face teaching exemptions' can obviously be abused in both
directions...it should be the owners' burden of proof. The school and the
librarian should not be drafted into acting as copyright police. I don't
think that is 'looking the other way', it is an informed choice. (Those who
slam the young lady who wants to do something Socratic with cartoons because
she didn't use spell check and her mother who believes in the rule of law
may be funny but they are not relevant.)

Copyright law was intended to promote creativity. It is out of balance. It
now promotes creativity for those who do work for hire for large
corporations. It allows creativity by others if it does not step on the
agendas of those media giants. It discourages creativity by those (such as
Anime fans/college students) who challenge, ignore, reject those agendas.

Here's the thing. Copyright laws are routinely ignored and/or
misinterpreted. There are free film screenings all over the country, for
which exhibitors are not paying performance rights. So while it can be
argued that copyright law is overly restrictive, one has to take into
account that there is leeway inherent to the system. I am not advocating a
"turn a blind eye" kind of attitude, particularly in an institutional
setting, but one has to recognize that this is not a totalitarian state. If
that were the case, these copyright infringements would not be so prevalent.

The fact that it is essentially the responsibility of the creator to monitor
the use of their own work in the public domain is perhaps troubling, in that
surely there are abuses going unchecked, but I wouldn't lose sleep over it
personally. I've always felt that copyright laws, while expansive in
nature, are mostly in place to prevent flagrant appropriations of material
for profit, and when those situations arise, it's pretty obvious. The side
effect is that large corporations with a "long arm", as it were, have more
control over their product. But really, why should I be able to use Mickey
Mouse to sell t-shirts (unless it's a parody)? I didn't create him and I
would just be a freeloader, a bootlegger, to co-opt Mickey, having done
nothing to contribute to the creation of one of the most recognizable
characters in the world...

Also, Jed, I think it is disingenuous to infer that copyright law in some
way makes us ask permission for everything we do, reducing us to mindless
automatons. On the other hand, it could be argued the copyright laws promote
creativity and originality, in that one is not allowed to simply duplicate
or utilize other people's creative works for profit. Make it yourself and
you might be rewarded!

Thanks,
Marc Syp
Supervisor, Film Library
St. Louis Public Library
314.206.6704

-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu]On Behalf Of jed horovitz
Sent: Tuesday, September 21, 2004 6:07 PM
To: videolib@library.berkeley.edu
Subject: RE: [Videolib] Public performance rights question

Dennis, Susan and Jessica,

A. Dennis, I have been in the film and video business for almost 30 years.
I have worked for independents (roger corman, pierre gaisseau, hugh hefner)
and studios and educational producers and myself. I know lots of people. I
am sure I don't know most of the people who work in independent media
production. I don't think you can claim that you or Jessica know everyone.
I don't even think you can claim you know everyone in the educational film
area. I wish you would stop trying to lord it over people.

B. We all know you don't get rich from educational anything. Everyone on
this list thinks creators should be paid (at least those who have posted)
and I am willing to bet that most of them (like me) think publishers and
distributors serve a valuable function and should be paid as well. From
what I can tell, the objection is to over-reaching copyright, unlimited
copyright, intimidating copyright and the resulting loss of cultural
continuity and the opportunity to participate in audio-visual use and
re-creation without hiring a lawyer. Technological change has made some
great uses (and abuses) of copyright possible. Large corporations, in their
soul less way, have tried to stop the tide of progress. Why do you put
yourself in the role of the little Dutch boy? It is not your fight.

C. I was the one who sees a totalitarian attitude in copyright law. If
you walk across my lawn I can ask you to leave. If you don't, you are
trespassing. Unless I post a sign, I have to assert my property right. If
I sue you for damages, I have to prove that you hurt me by walking across
the lawn. Copyright law assumes you are guilty until proven innocent and
awards statutory damages that far exceed the cost of most users' rights.
This CHILLING EFFECT is what has made things so unbalanced. Do you really
want to live in society where you have to get permission to do everything?
Controlling media expression is the first step to controlling expression is
the first step to controlling thought is the first step to controlling
action. Please don't take this personally, I doubt you would ever use your
copyrights to control other free thoughts and this is just about business to
you BUT this is unfortunately a law that applies to all (not just the nice)
people.

D. The copyright 'needs' of the educational media sector (creators,
aggregators and users) is different than the copyright 'needs' of the
independent feature sector which is different than the 'needs' of the mass
entertainment arena. The fact that they all have the same rules is a
symptom of what is wrong. This is a difficult OPTIMIZATION problem not the
maximization of property values problem you have bought in to.

E. As a creator, I am aware that I may lose a bit of control in exchange for
a culture with more freedom. I doubt it will hurt me much since 'piracy is
a progressive tax'. I doubt it will hurt you or any other distributor to
the library market. In fact, I doubt the 'hurt' would be much for everyone.
You can always raise your prices.

Jed