The downside of user generated content is that creators, coders, artists, and authors – the ones producing the content – are engaging in a one sided relationship. Their work, once contributed, can become wholly owned and controlled by the company they provide it to. If the creative work becomes part of a larger whole then this non reciprocal relationship means that while the website, book, or games they’ve added to can freely use their contributions, the opposite is not true.

My friends and I experienced the flip side of social media this week. Two years ago we entered a contest to be part of a video by the punk group ‘Yeah Yeah Yeahs’. The collaboration asked fans to dress up like the band and film themselves dancing around to the song ‘Cheated Hearts’, a track from the Yeah Yeah Yeah’s second LP ‘Show Your Bones’.

It wasn’t an original idea, the Welsh indie group Feeder had done pretty much the same thing almost five years before, with their fantastic video ‘Just a Day“; but we liked the band, we liked the song, and it looked like fun.

My friends and I duly spent an evening getting dressed up in ludicrous costumes and makeup, and filming ourselves in various states of confusion. Afterwards, we ripped our tapes to computer and sent the originals, along with a release providing the band and their representatives with ownership of “all worldwide rights in the material submitted”. This rather lunatic agreement is pretty standard as far as user generated content goes, and though we didn’t like it, it was required to contribute.

A few months later we received a notice from the band, to the effect that our performance was to be included in the final video, and that we would receive a prize for our contribution. Shortly afterwards the band sent us a token bunch of signed pictures, stickers, patches and the like.

Finally the Cheated Hearts video was released. Rather than being exclusively fan made, it intermixed contributions from fans and a second official band video.

Despite being flattered (and embarrassed!) at be flashed across MTV around the world, we were a little disappointed that our contribution (it’s at the 3.04 mark) was a just 3 seconds long. So we took our footage, synced it to the song and uploaded our own fan edit video, as did a variety of other folks [1], [2], [3], [4], [5]. It was something to email our friends about, a bit of humiliating fun to play at parties. Our finished video was no great shakes, but we liked it, as did just under seven thousand other folks on Youtube. However, I can’t show it to you, because apparently someone at Universal didn’t. Here it isn’t..

The video has been removed from Youtube, removed from Youtube listings and cannot be accessed from the site. Last Sunday (October 19th), I received notice from Youtube that one of those dreaded Digital Millenium Copyright Act (DMCA) ‘takedown notice‘ had been sent to them – they don’t tell you from whom – claiming ownership of the song included in the video.

All such DMCA copyright notices require is for someone to claim ownership of a video, or of audio or visual elements which appear in a video. There is no defence for ‘fair use‘, for parody or educational purposes. All someone who wants a video – any video – removed from Youtube has to do, is to fill in this form on the Youtube site and email it off. The video will be instantly removed. The individual, group or company claiming ‘infringement’ doesn’t have to demonstrate ownership.

Like I said, they don’t tell you who sent the notice, but it’s not hard to guess. The Yeah Yeah Yeahs are signed to Interscope Records, a label owned by the Universal Music Group. According to the (user generated!) encyclopaedia Wikipedia, UMG includes the largest music publishing company in the world, Universal Music Publishing Group, and is one of the ‘Big 4′ record labels controlling much of the music industry.

Legally, what with the release we signed and the screwy DMCA, I figured we didn’t have a leg to stand on. But I sent an email to the Electronic Frontier Foundation anyway. The EFF are an organisation who monitor emerging internet and copyright law, and attempt to redress the misuse of copyright legislation. I asked them if making a so called ‘DMCA Counterclaim‘ (the only way to fight a DMCA take down notice), from outside the US would make me personally liable to legal action. The EFF were kind enough to get back to me this morning.

So where does this leave us? We could re-upload the video to Youtube or another streaming service, potentially leaving us (well, me) exposed to legal action under the DMCA or it’s European equivalent. I’m no lawyer, so I’ve no idea what the potential penalties are in this area. If I’m quick (you only get 14 days, and five have already passed), I could submit a DMCA counterclaim, which as Eva points out above, could theoretically expose me to conviction for perjury in a San Francisco court, and to a lawsuit for damages (sic) from Universal Music. I could on the other hand use Youtube’s internal tools, which became available as a link from my account’s ‘my videos’ page, once the DMCA claim was received. These provide a variety of unhelpful options – I can permanently mute the audio element of the video, replace the audio with content licensed by Youtube (the Yeah Yeah Yeah’s aren’t an option, and even if they were, the audio wouldn’t be correctly synced), or dispute the claim – which again could result in the deletion of my account, if the ‘copyright owner’ upholds their claim, which seems likely. Or I could write this blog post, publicise the issue and perhaps in an ideal world where clouds are made of candy and butterflies whistle sweet music on Summer afternoons, get this unfair claim withdrawn.

My friends and I don’t blame the band. We doubt very much that they, or indeed anyone from their immediate label, contacted Youtube after being shocked and appalled by our ‘misuse’ of their copyright. Likely an automated piece of software, somewhere in the bowels of a Universal subsidiary, scanned the video’s audio track, and spat out a legal notice. What bothers us are a) the unfairness of the situation – the idea that we can’t share something we created because an element of it is ‘owned’ by a megacorporation, and b) the precedent that cases like this set. All creative work (important and monumental, or just plain silly and fun) is built upon the groundwork of existing culture – whether it be the brothers Grim appropriating European mythology, or Led Zeppelin integrating blues riffs into rock and roll music. As the range of instruments we use become virtualised – from the game engines used in Machinima, to level design tools like those of Little Big Planet – they fall under the ownership of vast faceless corporations, and the legal purview of laws written and paid for my US media conglomerates. This can leave creators, remixers and contributors powerless in the face of legal sanctions. My friends and I helped (in however small a way) to create something, which was then used as a promotional tool. It’s only fair that we get to remix and share our efforts in return.

Paul Walch of Segala, asks ‘Do we want a code for blogs?’

This question has arisen due to the Kathy Sierra controversy, the case of the online harassment of an O’Reily writer by an anonymous group of commenters, at a blog created specifically for uncensored criticism. Very quickly the ‘blogosphere’ divided into two camps, those who repudiated the hate speech directed at Sierra, but considered it a cost of the freedom of speech that blogging affords. And those, like tech writer and Web2.0 pioneer Tim O’Reilly, who believed a response was needed (beyond the specific legal retaliation sought against the perpetrators). O’Reilly’s proposal was a code of conduct for bloggers. Here’s the wiki for the code under development.

What follows is my response to Paul’s question, both in terms of the idea of a bloggers code of conduct, and the specific code O’Reilly proposes.

In short

Absolutely not, as Glen Farrelly points out, ‘good’ bloggers will follow their own individual codes regarding what they perceive as responsible behavior, ‘bad’ or ‘irresponsible’ bloggers will not follow any informal codes.

In detail

Apologies in advance for my inevitable mistakes in attempting to characterise Irish Law, a complex area in which I am not qualified to comment.

The blogosphere already has the means to deal with antisocial behavior, whether it be the denial of links to hate sites, or taking legal action against defamation. It could spell disaster if additional forms of policing emerge from within blogging, at a time when freedom of speech is being implicitly reduced through the dumbing down of media and the normalisation of embedded reporting; and explicitly prevented by anti scientific and religious extremist movements, by totalitarian governments (witness the insidious sousveillence built into the Chinese version of MySpace), and by the misuse of legislation regulating speech online.

Generally speaking, the blogosphere is a broad church with respectful members. A vanishingly small number of individuals abuse the anonymity blogging makes possible to besmirch others, beyond the acceptable realms of satire or parody. Their actions are to be repudiated, but should not be used as an excuse to sacrifice the freedoms enjoyed by all. Luckily, the centralised, intercommunicative nature of the blogosphere, means indubitably antisocial behavior is rapidly identified and denied an audience.

Copyright:

Adding copyright to the debate, as O’Reilly has done, appears an example of abusing a controversy for personal ends. Copyright and patent law are in a state of flux right now, and in a sense a culture war has developed. On one side neoliberals like the WTO and corporate lobbyists, are seeking to maximise copyright duration, and criminalize copyright infringement through legislation like IPRED2 in Europe and in the DMCA in the US. On the other, NGO’s like the Free Software Foundation, Creative Commons, the Open Science Project, and the Electronic Frontier Foundation, are developing methodologies for the open exchange and development of ideas; and seeking to defend fair use and ensure a viable digital commons.

This debate is far from over, and to seek to propose a set of guidelines for blogs, enforcing laws which in many cases have been imposed in complete contradiction with how the web has evolved, and the means by which humans most effectively proliferate knowledge and opinion, is both absurd and dangerous. Let me provide an example. In Ireland, where this blog is written (though not hosted), the legally allowable extent of ‘fair dealing‘ (equivalent to the concept of fair use), is more restrictive than in the United States. Under Irish statute, it may be literally illegal not merely to host copyrighted music (as the highly influential, promotional music blogs regularly do), or images (as most bloggers do to illustrate their articles), but also to quote small sections from newspapers, books, blogs or other material under copyright, as is almost universally done by blogs to illustrate a conversation. To quote Daithi MacSithigh (who I’m almost certain won’t sue), “Copyright violations are either legal or illegal – we don’t need a Bloggers’ Scout’s Honour Code to deal with things that people post.”

Defamation:

Defamation and liable laws are also much stricter in this country, with both the hosting company, and the owner of a blog liable, not merely for a blogs content, but for the defamatory content of its comments. This host liability is regularly misused by aggrieved companies, who have for example received a negative review of their products, to have entire websites preemptively removed with a solicitors letter. A practice described by TJ McIntyre, in the Sunday Business Post, as ‘a form of privatised and cheap censorship that’s quicker than going to court’. A ‘liable’ can consist of merely repeating published allegations. Just as I, in this very article, am repeating the allegations regarding the alleged threats to Kathy Sierra.

And lest you think that such legislation is a quirk of a wee country’s decrepit legal system, the same removal procedures frequently occur in the United States. When a hosting company receives a complaint under the safe harbor provisions of the DMCA, it can protect itself from liability if it ‘responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity’ (DMCA SEC. 202, Amendment Sec. 512, C, 1). Irrespective of whether the material in question is actually infringing. This provision is often used to deny access to (or delete outright) entire business or personal websites on the basis of unsubstantiated ‘takedown’ letters.

Chilling Effects:

Now Paul Walch is not proposing Tim O’Reily’s guidelines specifically, and Tim O’Reilly’s evolving guideline do no currently seek to extend copyright, or the reach of defamation law. However, the examples quoted above are just some of the chilling effects which emerge when codes, guidelines and ultimately laws evolve – with the reasonable goals of protecting individuals from harassment, and businesses from copyright infringement; and ultimately act to dilute sometimes necessary anonymity, erase criticism, and create artificial fences around the communication of ideas.

It is sheer naiveté to assume that if a bloggers code does emerge, complete with microformat tags and shiny PNG badges, it will not be used within censoring applications, such as those which are manditory in US schools and libraries, to restrict access to information. Or by autocratic governments to censor their own citizenry. Moreover, it is insidious to conflate such codes of conduct with labels declaring compliance to web standards and accessibility, or opt in licensing agreements like Creative Commons; as Content Label appear to be attempting. While creative commons licenses facilitate the controlled sharing of information by it’s creators, and accessibility guideline facilitate the widest possible access to information, a bloggers code of conduct can only ever reduce the freedom of expression which blogs facilitate, and if successful could act to ghettoise speech outside its defined framework.

What’s the use?

While O’Reilly’s code and similar initiatives will most likely fail to win enough popular support to become enforceable, it’s not beyond the realms of possibility that they will succeed enough (for example by becoming default options on blogger and typepad, or in wordpress installs) to endanger debate. Without an enforcing body they are effectively powerless (unless separately enforced by governments or third party filters), with the backing an enforcing group they have the potential to become the internet equivalent of the much criticised MMPA rating system.

Paul Walch says ‘I’m not trying to police the Internet‘, and I believe him. But when codes like the one currently proposed emerge, they fill a vacuum in the control of internet speech, and are eagerly supported by individuals and governments who seek such control.

One interesting question to ask is, would such a code of conduct have prevented the Kathy Sierra incident? Markos Moulitsas Zúniga thinks not, “1) There are assholes that will 2) email stupid shit to any public figure (which includes bloggers, but 3) that won’t be stopped by any blogger code of conduct”.

Interestingly, under Irish law, my quoting Zúniga technically infringes copyright, thus violating O’Reilly’s proposed code – ‘We define unacceptable content as anything included or linked to that.. infringes upon a copyright or trademark’.

Subsequent to posting a link to the (UCD?) ‘Killer Coke’ Bebo page a couple of days ago, it seems the popular page has disappeared. Although never one to underestimate my own importance, I sincerely hope this is not a chilling effect of questioning Bebo’s censorship policy at last weeks Social Network Webcamp. The TCD campaign, which recently succeeded in renewing the Trinity campus Coke produce ban, still has an active Bebo page.

I’m not involved in either campaign, and not sufficiently informed to judge either sides merits, but more information is available here – pro coke, anti-coke, and here’s the ubiquitous wiki.

Perhaps this is something DRI should look into?