Saturday, May 26, 2007

Using fair use to attack fair use

On Friday, Lucasfilm released clips from its Star Wars movies on Eyespot, a San Diego company that both hosts a website and produces editing software. As I noted in my SD Telecom blog, Eyespot’s cooperation with licensed content is in stark contrast to the GooTube business model.

On his blog, Mike Madison added a copyright law wrinkle I hadn’t considered:

Of course, once Lucasfilm blesses the remixing, a couple of things happen. One, the resulting remixes aren’t necessarily examples of “fair use”; so long as the mixers follow Lucasfilm guidelines, their mixes are authorized. Two, Star Wars remixes that don’t rely on the authorized clips begin to look a bit less like fair use than they might otherwise; here again, there is a copyright owner that is authorizing parodies. Under a typical four-factor analysis of fair use, avoiding an authorized “market for parodies” appears to cut against the user.
That’s a really clever angle — don’t know if it took a lawyer to come up with, or only a lawyer to spot it.

The fair use law makes quite clear that anything that diminishes the value of the original looks less like fair use. Since Lucasfilm/Eyespot eventually plan preroll ads to support their website, parodies that bypass the site will be undercutting Lucasfilm’s business, and thus less likely to be considered “fair use.”

Some are whining that Lucas is tightly controlling the clips with possible censorship (e.g. against Princess Leia as a porn star). But if Lucas didn’t exert some control, then it would lose the ability to go after others who diminished the value of the franchise.

As for complaints that Lucas isn’t sharing advertising proceeds for user-generate content, where is this true? Geocities? Yahoo Groups? Blogger? YouTube? Hotmail? I think everyone knows that “free” on the web means “I don’t pay but others sell ads.”

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rod said...

Whining? Perhaps. The main thrust of my post, however, was that Lucasfilm's stated intention of "opening up to the starwars community" is not consistent with its very closed and proprietary approach to doing so.

Consider: Lucasfilm reps consistent compare the move to capitalizing on the youtube phenomenon: but would YouTube have been successful if you were unable to upload video, had to create video using YouTube's tools, could use only clips provided by YouTube, and were subject to arbitrary deletion by YouTube censors? What made youtube successful was the open, free-for-all, user-powered approach they took.

So - whiny it may sound, but to claim the spirt of YouTube while taking the actions of a record label is dissembling at best, or more likely indicative of the profound lack of understanding (re: new/social media) that seems to permeate big media businesses.

Joel West said...

I’d agree that the rights or options being provided by Lucasfilm are a fraction of those on YouTube.

I see the glass as more half full, rather than half empty. Certainly it’s a lot more than most movie production companies are doing right now — how many of them are encouraging the use of their material for any sort of editing?

I think they understand t.he new media just fine, but they are experimenting, putting just one toe in the water. If they give too many rights, it would be hard to take it back, so it makes sense to try things one step at a time.

Perhaps my perspective is different, since I’ve been studying hybrid open sources strategies of for-profit companies. This is, for example, more open than the typical “fishbowl” strategy of so-called open source companies.

At the end of the day, it’s a free market and Lucas’ IP to do with as they see fit. If other companies are more open and win more fans that way, more power to ’em.

rod said...

Yeah - fair enough! I suppose I'm just a committed believer in extremely liberal IP policies. Time will tell - and I'm looking forward to seeing how restrictive the product ends up being anyway.