Intellectual Property in the YouTube Era: The Justin Bieber Problem

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Oct 27, 2011

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New "Fair Use" Laws for a Digital World

essig supports the right of artists to protect their work but not in the restrictive way it is done today. He proposes two directions for changes in the law. First, he suggests extending the "fair use" concept to digital content beyond text. In the text world, at least in America, "fair use" is associated with quoting text from a copyrighted article. As long as the source is credited and the amount of text is small (a subjective measure left purposely vague), no prior permission from the owner of the material is required. To date, however, no "fair use" exclusion exists for video or music, likely because when the laws were established, no one thought of these media types as candidates for "quoting." Thus to create a remix (now quick, easy, and widespread) legally, you would need advance approval from the corporations owning the rights, and there is little incentive for them to offer such approval. Most digital native remixes are made for sharing rather than for commercial use. Adding fair use rights for video and audio "texts" would clear up the ethical issues remixers are currently faced with.

Lessig also has offered a variation on the open source software concept, Creative Commons (, for managing rights to digital content. Using Creative Commons, individual artists decide to share their digital content, and various forms of creative commons licenses allow them to offer much more flexible terms for the reuse of their content. If the choice to share comes from the artist, some of the more restrictive laws would be irrelevant. Until this approach becomes the way all artists choose to work or corporate content makers get on board, the issues of legality remain.

Another idea that does not involve changing the law, but simply changing practice, might be for publishers to offer various levels of pricing for music and video, the way today's software is offered-with a steep discount for students. At Seattle Pacific University, a student can buy Microsoft products for a fraction of what they cost on the market. Microsoft apparently views this as a marketing opportunity. Perhaps this could be done with music and video as well (e.g., download a song for 10 cents rather than for 99 cents. It is difficult to know whether students would still copy files if they could get them legally for such a small amount, but it certainly seems worth trying. (Of course, the act of paying for the content needs to be as easy as, if not easier than, stealing it.)

Of primary concern to Lessig is the untenable position we are in at the present. It is more than an issue over a law that is broken, he argues. Rather, when a large group of people begins to live its life against the law, as is the case with the significant percent of digital natives who copy and share protected digital content, it is "extraordinarily corrosive and corrupting" for society as a whole.

The Digital Native's Content Dilemma


The advances in technology have created the opportunity to easily do things that used to be difficult and expensive. Whether sharing music and video or creating new art through photo editing and remixing, digital natives have grown up doing these things with little regard for content rights. Some of them do not know it is illegal, some simply don't care, while others believe it is OK to disregard the law since it doesn't make sense in a digital era. I have identified some areas where proposed changes in the law are being considered. Changing the law, however, is a long and difficult process. Some alternative practices that publishers could offer would perhaps help the situation, but these have not yet been tried. There are some alternatives for artists who would choose to share their content more freely, though most have not gone in this direction.

At this point, digital natives are confronted with a choice. To act ethically, a person must pass through the first question. There is the option to work for change in the law, and I would challenge many digital natives to get engaged in thinking about this and to participate in making such changes real. The changes must consider all of those involved, not just the one who wants access to the content. To act ethically, we need to act legally as well.

In discussing this with many natives, I have heard the response, "Isn't civil disobedience a way to change the law? Isn't that what was done to eliminate laws supporting segregation, for example?" Indeed, in situations where a deep moral principle is involved, disregarding the law may be the best approach. However, is it possible to suggest that not wanting to pay for music or video content is a deep moral issue?

For example, people who are poor simply can't afford the digital content, and since there is no cost to copy and ship it, isn't it only reasonable for them to copy it? Perhaps this would be a good argument for basic necessities of life: food, clothing, shelter, adequate healthcare. I would be hard pressed to agree that digital content sharing could be justified today on this basis, but it may not be outside the realm of digital natives' thinking. When you can move the conversation from "I didn't know it is illegal," "I don't care," or "Everybody is doing it" to building a case for a moral imperative, then we are making progress. In the meantime, we all need to work toward rethinking laws that no longer fit the digital era.


Ethics is more than a matter of opinion. It involves careful thinking and action according to a set of principles and virtues that enable a just society and support its missions. Technology has played a strong role in creating change at every level of our lives, from work to play to personal life. It has also created many new situations where we have little wisdom and experience to guide us. Technology challenges ethical traditions. When these changes and challenges come together in digital media, it is no wonder we have a great deal of uncertainty and confusion.

We have arrived at a version of the "tragedy of the commons." When people walk past a vacant lot filled with litter, it is all too easy for them to add their own trash to the pile. If the same people walk past a well-manicured lawn, they would not think of tossing their trash there. So it is with ethics applied to digital media in our digital world. As Lessig said, when a society lives against the law, it has a corrosive and corrupting affect. This needs to be fixed. While it is being fixed, each of us individually (digital native or not) needs to think carefully about making right choices. We need to remember that as technology continues to develop over time, we will keep walking into the land of the unknown and need to start processing all of this again.

Erisman recently interviewed Darcy Antonellis, President of Technology, Warner Brothers Entertainment, and asked for her response to the concern about the creation of mashups. Creators argue they don't have a legal way to create such mashups because there is no "fair use" provision for video without prior approval. Here was her response: "We would argue there's absolutely a framework for fair use and no evidence of legal challenges here. The content industry has generally taken a very light touch to such use. YouTube applications, where clips are used in mash ups, are out there without challenge. That isn't the big issue. The big issue for us is when you have films being used as the masters to be virally distributed for free on rogue sites. These are used to support websites that generate massive amounts of revenue from advertising illegally, or to kick start the physical supply chain.  Lessig has his view that the law is not clear. Our view is that there's a clear framework and that our behavior and reactions support that."

For the full conversation with Darcy Antonellis, see  

Source: Conversation with Darcy Antonellis, Ethix ( October 2011.

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