What do we make of these Yalies' stories?
Kendra, Memes, and Online Culture
When we think about the dialogue of online communities, too often we focus on the negative. We might think back to the torture of Jessi Slaughter by 4chan. Thankfully, online communities have a greater potential than that shown by the incidents of mass bullying we may focus on. As seen from Kendra's meme on Tumblr, online communities can be places for discourse about large-scale societal issues. On Tumblr users shared Kendra's memes and discussed how her posts reflected their lives. The platform served as a means of putting Kendra's message through thousands of megaphones.
This is not to say that the Tumblr community is perfect. In fact, some did respond back to Kendra's memes with racist and sexist statements. However, this was the minority of responses. This also is not to say that the meme is a perfect societal tool for driving important discourse. A meme can reduce a societal problem down to only two lines. It can't fully demonstrate the complexities of a situation nor will everyone be able to "get" the meme.
However, the meme does have several key advantages as an activist tool. First, unlike most manifestos or critical texts, the small length of the meme makes it more accessible--it simply takes less time to read and circulate the ideas. Second, the two lines of a meme lend themselves to a critical discourse. Many memes, such as "Successful Black Man" and "Good Guy Greg," rely upon the use of irony and the unexpected. In this sense, the meme can be an effective tool for showing how what we thought to be the truth may be flawed. Further, sites such as memegenerator actually enable others to jump in on the discourse themselves and circulate their own ideas in an effective manner. The barrier to entry here is extremely low--all one needs is an Internet connection and an idea.
Speaking to Kendra also enabled us to learn more about what it means to be an "Internet celebrity". While most of us will only get 15 minutes of privacy in the brave new online world, those who become "Internet celebrities" may get even less. Two things really struck us about what it means to be "online famous": 1. Even if you begin by controlling your identity online, being "online famous" means that certain factors become out of your control. For example, Kendra's image was used by other people to generate their own memes, even though she did not endorse their ideas. Further, Kendra had to create a separate Tumblr for attention to her memes. However, the possibility of identification and pursuance by someone who disagrees with her meme is still very much there. 2. Even if we prevent strangers from getting our personal information and creating messages using our image, an "Internet celebrity" still needs to deal with how individuals in her own life respond once they identify her. While Kendra's boss was encouraging, it does remind us that Internet experiences can affect our relationships with our employers.
This is not to say that the Tumblr community is perfect. In fact, some did respond back to Kendra's memes with racist and sexist statements. However, this was the minority of responses. This also is not to say that the meme is a perfect societal tool for driving important discourse. A meme can reduce a societal problem down to only two lines. It can't fully demonstrate the complexities of a situation nor will everyone be able to "get" the meme.
However, the meme does have several key advantages as an activist tool. First, unlike most manifestos or critical texts, the small length of the meme makes it more accessible--it simply takes less time to read and circulate the ideas. Second, the two lines of a meme lend themselves to a critical discourse. Many memes, such as "Successful Black Man" and "Good Guy Greg," rely upon the use of irony and the unexpected. In this sense, the meme can be an effective tool for showing how what we thought to be the truth may be flawed. Further, sites such as memegenerator actually enable others to jump in on the discourse themselves and circulate their own ideas in an effective manner. The barrier to entry here is extremely low--all one needs is an Internet connection and an idea.
Speaking to Kendra also enabled us to learn more about what it means to be an "Internet celebrity". While most of us will only get 15 minutes of privacy in the brave new online world, those who become "Internet celebrities" may get even less. Two things really struck us about what it means to be "online famous": 1. Even if you begin by controlling your identity online, being "online famous" means that certain factors become out of your control. For example, Kendra's image was used by other people to generate their own memes, even though she did not endorse their ideas. Further, Kendra had to create a separate Tumblr for attention to her memes. However, the possibility of identification and pursuance by someone who disagrees with her meme is still very much there. 2. Even if we prevent strangers from getting our personal information and creating messages using our image, an "Internet celebrity" still needs to deal with how individuals in her own life respond once they identify her. While Kendra's boss was encouraging, it does remind us that Internet experiences can affect our relationships with our employers.
John, Youtube, and Music Rights
John faces an interesting dilemma. He has an impressive talent for playing the piano, and he would like to teach others to play the piano while hopefully making a small profit in the process. Due to a large volume of DMCA takedown notices, YouTube has rescinded John’s ability to monetize many of his instructional YouTube videos with ads. I think that there are two main issues worth discussing with respect to John’s experience: fair use within the copyright regime and YouTube’s role as a gatekeeper to content on the Internet.
Before I begin discussing fair use, though, I think it is important to explain the motivations behind copyright. The origins of copyright law in the United States stem from Article 1 Section 8 Clause 8 of the US Constitution, which grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In other words, copyright law seeks to foster artistic creativity and scientific discoveries in order to benefit society intellectually and socially. This idea is reinforced by the phrase “limited times,” which highlights that copyright should not be viewed as a natural right of authors to their intellectual labors. It is important to keep in mind that copyright for original works of authorship is a means to an objective, not an end in itself.
Copyright grants to authors of original works the rights to show, spread, reproduce, and perform their copyrighted works and to create derivative works. If this were all that there was to copyright, then it would be difficult to achieve the objectives of copyright (promoting the arts and sciences) because all creative works are at least in part derivative. Creative works necessarily incorporate at least to a degree other creative ideas. For this reason, Section 107 of the Copyright Act of 1976 limits the exclusive rights provided to authors with a standard known as fair use. When determining if a work qualifies as a fair use of copyrighted content, the following factors must be weighed against each other:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
--17 USC §107
When considering fair use, each of these points should be examined one by one, and then a holistic determination should be made. I will offer my own analysis with respect to these points in John’s case.
With regard to the first point, John’s videos are certainly instructive: he takes parts of songs, breaks them down into musical notes, and shows his viewing audience how to play these individual notes. There is also significant societal value in John’s videos: John is sharing his many years of piano experience so that viewers can begin to learn to play the piano at no cost. John’s works are also transformative in nature: the pop songs that John incorporates into his lessons have a purely entertainment-based purpose, while John’s videos are primarily instructional. Furthermore, as John mentioned in the interview, in order to achieve his objective of teaching viewers how to play the piano, it is essential for him to use pop songs because of their cultural relevancy. John could teach 200-year-old songs that are no longer protected by copyright, but these songs would undercut his instructional objective since he would lose a significant amount of interest. The factor that weighs against John in this category is the stipulation regarding “nonprofit educational purposes.” When John chose to monetize his videos, his videos became for-profit; however, I think it is important to think of the profit/nonprofit distinction on a spectrum, not as a binary distinction. Even when John's videos were monetized, he was only making on the order of a hundred dollars per month. On balance, I think that the character of John’s use of pop songs weighs slightly in his favor.
In the words of Justice Story in Folsom v. Marsh, the second point within fair use relates to the “value of the materials used.” The idea behind this point is that certain works are more central to the goals of copyright than others. This point weighs against John, as most people would agree that creative, original music has a large benefit to society. The omnipresence of iPods and the celebrity status achieved by artists like Taylor Swift underscore the value society derives from music. For this reason, it is important for copyright to provide the proper incentives for creating new music.
When considering the third point, it is important to note that John is only playing the piano piece from the song; he omits the other musical instruments and the vocal accompaniment. Furthermore, he does not play the entire song through mechanically. Rather, in the case of Taylor Swift's "Love Story," he takes a small, representative piece of the song (35 seconds for the initial segment of his video) and then summarizes the rest of the song with “and it kinda repeats like that.” While he is more or less playing the “heart” of the song, the fact that he is only taking enough from the song to achieve his stated purpose—to teach viewers to play the piano through culturally relevant songs—weighs strongly in John’s favor.
For the fourth point we must consider the impact that John’s videos have on the market for the original pop songs. A good heuristic to use for this point is to consider whether John’s videos serve as market substitutes for the original pop songs or, deferring to Justice Story’s terminology from Folsom v. Marsh again, if John’s videos “supersede the use of the original.” While John’s account had over 7 million video views, which is a decent amount of traffic overall, I think few would claim that John’s instructional videos could serve as market substitutes for the original pop songs. Someone who is considering purchasing Taylor Swift’s “Love Story” is not going to instead go on YouTube, look up John’s video, listen to 35 seconds worth of John playing the piano portion of “Love Story,” and call it a day. For this reason, the fourth point should have minimal influence on the overall verdict.
Considering all four points in combination, even with John choosing to monetize his videos, I believe that the videos are still fair use. The chief issue here, though, is that fair use is a standard, not a rule, and that it sometimes differs from theory in practice (like John Else not being able to show footage because a 4.5-second clip of the Simpsons was playing in the background).
This brings me to my second point. While YouTube purportedly took away John’s right to monetize his videos because of the DMCA takedown notices that he received, YouTube still allowed him to keep the videos on YouTube. Furthermore, YouTube did not remove the ads from his videos. Rather, YouTube continues to reap the benefits of ad revenue from John’s videos. As a consequence, maybe the more relevant question is not whether or not John’s videos should qualify as fair use but rather why YouTube gets to unilaterally dictate the outcome. The answer to the latter is pretty straightforward: as a gatekeeper to content on the Internet, YouTube gets to stipulate the terms by which people can disseminate content through its website. We typically think of websites like YouTube as being unbiased mediums for exchanging content, but it is important to think about YouTube (or Google rather) as a business. As YouTube’s market share of Internet videos continues to increase, what will be the impact on people who want to upload videos? What if YouTube begins to abuse this power? What recourse will people have?
One potential solution is that John could move his videos to another website and continue to show them with ads on his own terms. The problem with this proposed solution is that YouTube holds a significant amount of power by being the central player in the Internet video market. By moving to another website, John gains the ability to display his videos on his own terms but at the expense of surrendering the large following that YouTube provides. Another potential solution is that John could cheaply purchase a mechanical license so that he would unambiguously have the right to use the relevant pop songs in his instructional videos, but this still doesn’t solve the problem of the asymmetry in power between content creator and content disseminator.
I don’t think that there are any clear cut solutions when it comes to dealing with gatekeepers like YouTube. YouTube is a division within a company and should be allowed to craft its own policy; however, it is important for society to be aware of the repercussions associated with relying so heavily on a site like YouTube. The initial convenience associated with finding all content on a single website can quickly transmute into dependence if society is not careful.
Before I begin discussing fair use, though, I think it is important to explain the motivations behind copyright. The origins of copyright law in the United States stem from Article 1 Section 8 Clause 8 of the US Constitution, which grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In other words, copyright law seeks to foster artistic creativity and scientific discoveries in order to benefit society intellectually and socially. This idea is reinforced by the phrase “limited times,” which highlights that copyright should not be viewed as a natural right of authors to their intellectual labors. It is important to keep in mind that copyright for original works of authorship is a means to an objective, not an end in itself.
Copyright grants to authors of original works the rights to show, spread, reproduce, and perform their copyrighted works and to create derivative works. If this were all that there was to copyright, then it would be difficult to achieve the objectives of copyright (promoting the arts and sciences) because all creative works are at least in part derivative. Creative works necessarily incorporate at least to a degree other creative ideas. For this reason, Section 107 of the Copyright Act of 1976 limits the exclusive rights provided to authors with a standard known as fair use. When determining if a work qualifies as a fair use of copyrighted content, the following factors must be weighed against each other:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
--17 USC §107
When considering fair use, each of these points should be examined one by one, and then a holistic determination should be made. I will offer my own analysis with respect to these points in John’s case.
With regard to the first point, John’s videos are certainly instructive: he takes parts of songs, breaks them down into musical notes, and shows his viewing audience how to play these individual notes. There is also significant societal value in John’s videos: John is sharing his many years of piano experience so that viewers can begin to learn to play the piano at no cost. John’s works are also transformative in nature: the pop songs that John incorporates into his lessons have a purely entertainment-based purpose, while John’s videos are primarily instructional. Furthermore, as John mentioned in the interview, in order to achieve his objective of teaching viewers how to play the piano, it is essential for him to use pop songs because of their cultural relevancy. John could teach 200-year-old songs that are no longer protected by copyright, but these songs would undercut his instructional objective since he would lose a significant amount of interest. The factor that weighs against John in this category is the stipulation regarding “nonprofit educational purposes.” When John chose to monetize his videos, his videos became for-profit; however, I think it is important to think of the profit/nonprofit distinction on a spectrum, not as a binary distinction. Even when John's videos were monetized, he was only making on the order of a hundred dollars per month. On balance, I think that the character of John’s use of pop songs weighs slightly in his favor.
In the words of Justice Story in Folsom v. Marsh, the second point within fair use relates to the “value of the materials used.” The idea behind this point is that certain works are more central to the goals of copyright than others. This point weighs against John, as most people would agree that creative, original music has a large benefit to society. The omnipresence of iPods and the celebrity status achieved by artists like Taylor Swift underscore the value society derives from music. For this reason, it is important for copyright to provide the proper incentives for creating new music.
When considering the third point, it is important to note that John is only playing the piano piece from the song; he omits the other musical instruments and the vocal accompaniment. Furthermore, he does not play the entire song through mechanically. Rather, in the case of Taylor Swift's "Love Story," he takes a small, representative piece of the song (35 seconds for the initial segment of his video) and then summarizes the rest of the song with “and it kinda repeats like that.” While he is more or less playing the “heart” of the song, the fact that he is only taking enough from the song to achieve his stated purpose—to teach viewers to play the piano through culturally relevant songs—weighs strongly in John’s favor.
For the fourth point we must consider the impact that John’s videos have on the market for the original pop songs. A good heuristic to use for this point is to consider whether John’s videos serve as market substitutes for the original pop songs or, deferring to Justice Story’s terminology from Folsom v. Marsh again, if John’s videos “supersede the use of the original.” While John’s account had over 7 million video views, which is a decent amount of traffic overall, I think few would claim that John’s instructional videos could serve as market substitutes for the original pop songs. Someone who is considering purchasing Taylor Swift’s “Love Story” is not going to instead go on YouTube, look up John’s video, listen to 35 seconds worth of John playing the piano portion of “Love Story,” and call it a day. For this reason, the fourth point should have minimal influence on the overall verdict.
Considering all four points in combination, even with John choosing to monetize his videos, I believe that the videos are still fair use. The chief issue here, though, is that fair use is a standard, not a rule, and that it sometimes differs from theory in practice (like John Else not being able to show footage because a 4.5-second clip of the Simpsons was playing in the background).
This brings me to my second point. While YouTube purportedly took away John’s right to monetize his videos because of the DMCA takedown notices that he received, YouTube still allowed him to keep the videos on YouTube. Furthermore, YouTube did not remove the ads from his videos. Rather, YouTube continues to reap the benefits of ad revenue from John’s videos. As a consequence, maybe the more relevant question is not whether or not John’s videos should qualify as fair use but rather why YouTube gets to unilaterally dictate the outcome. The answer to the latter is pretty straightforward: as a gatekeeper to content on the Internet, YouTube gets to stipulate the terms by which people can disseminate content through its website. We typically think of websites like YouTube as being unbiased mediums for exchanging content, but it is important to think about YouTube (or Google rather) as a business. As YouTube’s market share of Internet videos continues to increase, what will be the impact on people who want to upload videos? What if YouTube begins to abuse this power? What recourse will people have?
One potential solution is that John could move his videos to another website and continue to show them with ads on his own terms. The problem with this proposed solution is that YouTube holds a significant amount of power by being the central player in the Internet video market. By moving to another website, John gains the ability to display his videos on his own terms but at the expense of surrendering the large following that YouTube provides. Another potential solution is that John could cheaply purchase a mechanical license so that he would unambiguously have the right to use the relevant pop songs in his instructional videos, but this still doesn’t solve the problem of the asymmetry in power between content creator and content disseminator.
I don’t think that there are any clear cut solutions when it comes to dealing with gatekeepers like YouTube. YouTube is a division within a company and should be allowed to craft its own policy; however, it is important for society to be aware of the repercussions associated with relying so heavily on a site like YouTube. The initial convenience associated with finding all content on a single website can quickly transmute into dependence if society is not careful.