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in Filmmaking
on Jun 20, 2009

Yesterday wrapped up the first day of the Open Video Conference, a two-day event being held at New York University Law School featuring speakers, screenings and events all centering around the topic of Open Video. The conference, which can be livestreamed on its website, is produced by the Participatory Culture Foundation, the Yale Internet Society Project, the open source video platform Kaltura, iCommons, and the Open Video Alliance.

What is Open Video? Quoting from the website:

Open Video is a broad-based movement of video creators, technologists, academics, filmmakers, entrepreneurs, activists, remixers, and many others. When most folks think of “open,” they think of open source and open codecs. They’re right—but there’s much more to Open Video. Open Video is the growing movement for transparency, interoperability, and further decentralization in online video. These qualities provide more fertile ground for independent producers, bottom-up innovation, and greater protection for free speech online.

YouTube and other online video applications are rightly celebrated for empowering end-users; however, online video lacks some of the essential qualities that make text and images on the web such powerful tools for free speech and technical innovation. Email, blogs, and other staples of the open web rely on ubiquitous and interoperable technologies that have low barriers to entry; they are massively decentralized and resistant to censorship or regulation. Video, meanwhile, relies on centralized distribution and proprietary technologies which can threaten cultural discourse and innovation.

Open Video is about the legal and social norms surrounding online video. It’s the ability to attach the license of your choice to videos you publish. It’s about media consolidation, aggregation, and decentralization. It’s about fair use. In short, it’s about a lot of things, and that’s why this conference is going to be so exciting!

At its simplest level, then, this conference draws together technology folk, artists, filmmakers, legal scholars and cultural theorists who all believe in the desirability of an open source culture and non-proprietary standards when it comes to the publishing and dissemination of video on the web. But at the next level, there are diverse groups who share this common belief but who also have separate, overlapping, or sometimes even competing agendas. At the conference you can find those who aggressively critique existing copyright laws and trade practices alongside others looking for Open Video standards to decrease the cost of doing business while they find ways to monetize their own original, copyrighted content. There are idealists and business people, and then there are artists who belong to what Lawrence Lessig calls a “remix culture,” who seek greater authority and more efficient tools to cut-up and otherwise transform the raw materials of our culture into new works.

The first day was a fascinating one, well programmed with back-to-back presentations, many of them nicely modest in length. (One great idea: “lightning rounds” in which presenters had about six minutes to get their thoughts out before turning the dais over to the next speaker.) Here are some quick notes on some of the talks I attended.

The day opened with a keynote by Yochai Benkler, Professor of Harvard Law School and Faculty Co-Director, Berkman Center for Internet and Society. He talked about distributed action and innovation being essential to both the development of businesses as well as a more participatory and democratic public sphere. “The rate of innovation and learning is the core competitive necessity” today, he said, observing that “the smartest, most creative people never work for the same companies. Open innovation platforms allow innovation to speed up.” Benkler’s talk was quite smart in acknowledging the trade-offs inherent in the embrace of open platforms. While he said that the diversity offered by open platforms and the resulting weakening of what he called proprietary regimes would ultimately lead to greater innovation and did not represent an “opposition between market and non-market” forces, his talk also seemed to acknowledge open platforms’ disruptive effects on traditional content businesses like Hollywood film and the record industry. Rather than pretend that we are living through some kind of interregnum after which traditional content industries will flourish again, implicit in his argument was an acknowledgement that there’s a trade-off happening that must be accepted because it will lead to the greater social good. The unleashing of human creativity through these collaborative systems “is at the expense of more structured production — it threatens 20th century models and their legal systems of control,” he said.

Next I attended a seminar by Ross Harley, “From Open Circuits to Open Video,” in which he argued that the “radical challenges to television, art and culture made by video artists in the 1960s and ’70s find their echo today in the principles of Open Source, Creative Commons, Open Content and other emerging principles of participatory culture.” Starting with quotes from Nam June Paik and moving on to a discussion of the online UbuWeb (“More than mere promotion of artists’ work, it is a global distribution outlet that increases the value of the work,” he said), Harley’s argument was curiously framed. His premise wasn’t really debatable, but his conclusions, in which he circled back to argue that video artists can increase their audience by embracing the technological forces their creative ideologies presaged, seemed too simple for me. He quoted Lessig, saying, “The more you share something, the more valuable it becomes,” and while that dictum is indeed central to the thinking of many artists, there’s another group that believes differently. There wasn’t enough discussion of the role of scarcity in the creation of some video art’s value, the role of the viewing environment in constructing its meanings (most specifically with regards to site specific work and videos intended to be viewed in gallery environments), and the way in which a mode of distribution can form part of its actual content. Harley seized on the stated political ideology of a generation of video artists without really examining their social practices, in some cases ingrained Luddism, and, for some, their resistance to upending traditional support structures. On a more practical note, Harley advocated against YouTube and its corporate terms of use, saying “FLOSS platforms give artists more freedom” and “creators need to use the publishing services that work best for them.”

Next was a useful discussion of fair use as it applies to online video by Anthony Calzone, Fair Use Project at Stanford Law School, and Corynne McSherry of the Electronic Frontier Foundation. Calzone pointed out that because of the 2 Live Crew court case, which employed a “parody” defense, too many people believe that a fair use defense is dependent on the creators’ deployment of satire, parody, or cultural or political commentary. People forget that fair use applies when there’s been a creative or transformative use of the source material. “Fair use not limited to situations when you have something to say about the work,” he said. “You can say something else about the world around you even if you what you say is not that obvious.” He also spoke about common misconceptions regarding the purpose of copyright law: “People think the purpose of copyright is to ensure authors get paid. That’s wrong. The point is to reward the authors so they create stuff. It’s an incentive. We like creativity, and the Supreme Court has said this again and again.”

McSherry began her remarks by noting the good news/bad news scenario of today’s user-generated video world: “The good news is we have the tools to use fair use. The bad news? It’s easy for our work to be taken down by others.” She pointed out that the Digital Millenium Copyright Act creates incentives for service providers to take work down but not incentives for them to consider creators’ possible fair use defenses.

What can you do if your work is taken down? McSherry recommended considering the reasons why and then taking appropriate action:

1. How did it get taken down? By a filter? You can submit a dispute.

2. If it was for a Terms of Service violation, request a review.

3. DMCA takedown? Ask for copy of the notice and find out who’s complaining. Find out what are they complaining about? Consider filing a counternotice. McSherry said too few people file a counternotice. Also, consider a lawsuit under 17 U.S.C. 512(f) — suing for misrepresentation.

Next was Lizz Winstead, co-creator of The Daily Show and Shoot the Messenger. Because newspapers are folding and networks like MSNBC have no investigative journalism, using instead commentators from the traditional media, she predicted “that there will be an amazing opportunities for new media journalists to get on these shows.” Noting that she has a green screen in her house in order to make on-the-fly pieces, she also said, “Politics is personal, so get together with people you know” to make critical video work.

I attended a short press event in which reps from the Wikimedia Foundation, Mozilla, Kaltura and discussed the web’s gradual move towards Open Video. Erik Moeller from Wikimedia discussed Wikipedia’s upcoming inclusion of video content. “We hope to see new types of video content on Wikipedia,” he said. “No dogs on skateboards. We want to get into the same space as public television and educational video.” He also noted that upcoming browsers like Firefox 3.5 and Google Chrome are embracing Open Video standards. When asked what type of content Open Video will enable, Mozilla’s Chris Blizzard answered, “The killer app for Open Video will come once the environment is created. Mozilla won’t create it.” Ron Yekutiel, Chairman and CEO of Kaltura, discussed the needs other than just video publishing that users of open video standards will have. “Today video needs to be a custom process,” he said. “Controlling content, manipulating metadata, configuring playlists, doing different workflows, enabling users to upload content, adding advertising, syndication.” Kaltura is open source, giving away both its client side code but also its backend, but it’s still a commercial company, selling support, advice, and also itself as a service provider. “There is no dissonance between doing good and doing well,” he said.

After lunch was Matt Mason, author of The Pirate’s Dilemma (which can be downloaded from his website for a voluntary donation or else purchased in bookstores). Mason gave a great, focused talk in which he traced the creative work of cultural and business pirates ranging from the industrial innovators who ignored European intellectual property laws in order to jumpstart the 19th century American industrial economy to the pirate radio stations of the U.K. in the ‘60s, who served to introduce bands the mainstream stations were too conservative to play. For Mason, industries can innovate when they both compete against pirates but also find symbiotic ways to work with them — so-called “virtuous circles, where the pirate co-exists with the traditional entity.” “Pirates create problems but also solutions — they are some of the best innovators on the face of the earth,” he said. “One of the best ways to grow your business is to give pirates the space to do things you can’t do or don’t think of.” He offered some ideas of things content creators can do to fight the pirates (“If pirates are giving something away for free, then you can beat them by selling something that can’t be copied,” and, “Give consumers more things to pay for, more options to monetize”). Along the way were interesting examples, like the story of a London designer who designed and sold his own unauthorized versions of Nike’s Air Force One sneakers, following which Nike released their own editions inspired by his and bought shares in his company. He also talked about a future in which 3D printers hooked up to the internet will allow everyday consumers to pirate copy physical goods. “You can either fight piracy, go after pirates with the law, but if the pirates are adding value to an ecosystem in way that you are not, you can’t fight them through the law,” he concluded. “You have to compete with piracy with a new model.”

In a lightning round, Tribeca’s Brian Newman gave a thumbnail history of the internet and suggested that we are entering what theorist Gregory Ulmer called “electracy” — a movement from written literacy to a facility with hypermedia and new media that will be as momentous a shift for the broader culture as the transition from the oral tradition to the written word was — before listing what he said were the roadblocks to electracy, which included “lack of vision” and “lack of sustainable and real business models.” “People like to talk about the old media as the dinosaurs,” he said. “I would argue they are vicious mean bloodsucking beasts fighting to maintain their way of life. They are coming up with business models to keep their interests in control. We need to come up with our business models. Not just ‘open, open, open,’ but new business models.”

Later or tomorrow… day two.

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