Law in the Internet Society

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ChrisWollerFirstEssay 3 - 14 Jan 2015 - Main.ChrisWoller
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Media Free-For-All

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Media Free-For-All // Online Streams As Fair Use (revised paper)

 
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-- By ChrisWoller - 16 Oct 2014
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-- By ChrisWoller - 14 Jan 2015
 
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With patience and a little know-how, you can find almost anything you want to watch online, free of charge. Movies, television episodes and live sporting events usually require, at max, five-minutes of searching and link experimentation before they can be viewed on one’s computer screen. Thanks to websites such as First Row Sports and Project Free TV, to provide just two examples, individuals never have to worry about being unable to watch their favorite show or missing the big game.
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This paper advocates for a more liberal interpretation of the fair use doctrine in copyright during certain circumstances. Specifically, I argue that legally-dubious online streaming websites that, without license from the copyright holders, allow individuals to watch movies and television shows of their choice on demand, for free, should be considered fair use under 107 of the Copyright Act.
 
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Of course, the legal legitimacy of viewing media in this fashion is hazy. The truth is that it might not be illegal for individuals to view media on these websites. Still, it is legitimate to wonder why individuals should be allowed to view media at no cost beyond their monthly Internet bills, especially when large expenses are required to produce such media.
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Background

 
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Why “illegal” streaming is good, for everybody involved

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Individuals who have Internet access, but have otherwise limited financial means (and can’t afford a television or a cable subscription), but who nonetheless frequently consume television and movies (such as students and young adults working a lower-income job) are likely familiar with the ways to watch their media of choice online, on-demand. Netflix and Hulu are among the popular, legitimate ways to do this (legitimate meaning that the website has licenses for the shows from the copyright owners, or are the copyright owners themselves), and there are various other sites such as HBOGo, Crackle, and etc.
 
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The truth is that, without use of these sites, a massive amount of media would remain unseen and unutilized. Yes, there are “legitimate” ways to view media online – Netflix, Hulu, HBOGo, etc. – and one can watch usually watch sporting events online with either a cable subscription or a separate, expensive, online viewing package. Nonetheless, the majority of extant movies and television episodes are not available on these platforms. The individual who is watching the episode of their favorite old movie over an “illegal” stream might be incapable of viewing the media without utilizing the websites that offer the stream for free.
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However, there are numerous other websites that host copies of various television shows and movies without having a license to do so. These websites are, in general, easily found after twenty minutes of searching using rudimentary Google-strings, such as “watch (show title) online free”. Individuals might seek out these websites because they do not have a subscription to a legitimate service, or because the particular show they are after might is not available on a legitimate platform the individual has access to. Even though some legitimate platforms have vast programming libraries, the sheer amount extant media, and existence of exclusive licenses among competing platforms, means that no one platform can always satisfy an active viewer’s programming desires. Where there is a will, there is a way, however, and individuals can, more-than-likely, find their show on an illegitimate website when it is not available on one of the platforms they subscribe to.
 
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One can imagine that the creators of the media are much happier having their content actively sought, seen and engaged, instead of left dormant and forgotten. In the eyes of the some artists and executives, however, individuals viewing these streams are stealing, plain and simple.
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These illegitimate websites usually have a simple layout: a user searches for their show of choice, and are then presented with several ostensible links to view the media (though often many of the links do not work). From there it is only a matter of trial and error until a working link is found.
 
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This mindset is self-defeating, however. Streaming allows free initial access to media, which can in turn inspire an individual to find a legitimate means to watch. There are several reasons this might occur. First, paranoia of a prospective Napster-esque lawsuit from the copyright owners might cause one to seek a legitimate means to consume the media (objectively, of course, such a suit is incredibly unlikely). Or, once a user has decided they enjoy a program, they might seek out legitimate means of viewing on moralistic grounds, not wanting to “steal” when there are “honest” ways to view the media. One might also seek legitimate means to view programs for strictly pragmatic reasons. Streaming websites are a cesspool of pop-up advertisements, malware and pornographic images. The quality of the video is typically very poor, and the video requires frequent buffering, with constant stops and starts. The streams have a propensity to stop working altogether. Someone interested in a program might just decide his or her viewing needs are better satisfied with a high quality, reliable platform.
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Implicated Copyright Doctrine

 
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Additionally, even if a user does not eventually seek legitimate means to consume media, there are intangible benefits that artists and production companies experience from having their media viewed. The more a program is watched, the more likely it achieves cultural relevance. Economic returns can eventually accrue from becoming popular in the form of merchandise sales, website hits, etc. Industry respect can also result from a show’s popularity. Directors, actors and others involved in the production can have their status elevated, resulting in increased demand for their services, increased attention to their other projects, or, at the very least, more attention to their Twitter feeds. Sure enough, the executive of the most pirated show of all time recognizes the benefits of the “cultural buzz” that occurs when a show becomes culturally ubiquitous. Because of socioeconomic reasons, and the aforementioned lack of access, such ubiquity could not occur without pirating and online streaming.
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While viewing one of these illegitimate streams might not be illegal for the user to do, the host of the content is likely violating at least some of the exclusive 106 rights, such as reproduction, distribution and public performance. It can be argued that the hosts of the streams are reproducing the copyrighted media by creating the viewable link, and that they are distributing the copyrighted work by uploading it onto a mass-consumable website. There is also a chance that public performance rights are violated, in a manner analogous to the Supreme Court’s Aereo decision. Additionally, 109 first-sale doctrine (which insulate individuals from 106 distribution claims when they re-sell a lawfully acquired copy of copyrighted material) only can protect the hosts against distribution infringement.
 
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Media access should be available, regardless

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Advocating Fair Use

 
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While media does not possess the same utility as open-source software, there are similar arguments supporting unbridled access to media content. While not everyone who watches movies and television is interested in creating, everyone who is interested in creating movies and television does watch. Free access to media, then, gives future artists the reagents with which to create the next generation of similar media forms.
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In copyright law, once infringement has been found, a defendant can turn to 107 of the Copyright Act to assert an affirmative “fair use” defense. A finding of fair use absolves the unauthorized use of the copyrighted material from liability. Per 107, there are four criteria to a fair use analysis – purpose, nature of work, quantity and market effects. In practice, however, the first and fourth factors are the only ones that have weight in the analysis.
 
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The counterpoint is, of course, obvious: media can’t be created without large financial investments. If everything was free, no money would be made and productions would lose funding. However, under the current system, there will always be someone (the upper-middle class, suburban families, luddites, the elderly) willing to fit the bills currently charged for legitimate access to media. Of course, completely free access to media has the potential to create a free rider problem. But consider -- would this be a bad thing?
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The “purpose” prong is an inquiry into whether or not the use is transformative, i.e. the use adds something new, with further purpose or different character than the original, or if it instead is intended to act as a replacement for the original work. The market effect prong looks at whether or not the misappropriated copy will have negative effects on the market for the original. It is important to note that courts continually stress the fact no one factor is dispositive. I argue that hosting of unlicensed streams should be considered fair use, because it is sufficiently transformative, and does not have significant negative market effects.
 
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A similar phenomenon has occurred in the music industry. Unfiltered access to music via file-sharing created a sea-change in the industry. While one can still acquire music illegitimately (torrents, for example), there are now several legitimate ways to enjoy volumes of music, free of charge (e.g. Pandora, Spotify). Many artists have also opted to give their music away for free. If anything, the music industry meltdown has taught us that industries will adapt to complete availability of their media. As a result, music has become available in a more affordable and efficient manner. A similar phenomenon seems likely, or at least possible within the visual media industry.

Finally, media is information. Granted, an episode of South Park is not equivalent to a wiki explaining how to change a tire or describing the human genome. Nonetheless, popular media is an inevitable element of life, particularly in social contexts. Access to media is conducive to social adaption and bonding. Having common interests and experiences with peers raises one’s confidence within social groups. This confidence allows individuals to self-actualize, and, as a result, to maximize their life experiences as well as what they can contribute to society. An individual should not be disadvantaged only because they do not have the socioeconomic means or access to experience the relevant popular culture touchstones.

I think the essay could be improved by sharpening its subject. If it is an argument for eliminating an exclusive right to first distribution presently allocated to copyright holders by all copyright systems complying with the Berne Convention, more than "buzz is good," or "unwatched media are wasted," should be provided. If the point is not that copyright holders should be unable to prevent unauthorized first distribution, but rather that some copyright holders find "free streaming" a good distribution strategy, than the essay can be substantially simplified, although its point becomes rather a small one. If the purpose is to explore the ethics of copyright, the arguments can be put more starkly, and quite briefly, so that your own point of view can be clearly developed at greater length.

Perhaps the best way to begin the edit is to write the sentence that states the point of your essay. the idea you want the reader to take away. Make that the first sentence of the new draft, and develop the idea through the next 750 words. Use the last 200 words to provide the reader a conclusion which is actually a jumping-off point for ideas of her own.

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These streams do not, on their surface, seem in the least bit transformative, as they are literally copies of the original works. However, these streams are not intended to replace the experience of viewing the show in theatres or during live television. Instead, they exist in order to give access to the shows to individuals who could not otherwise view it. This is certainly a different purpose than the existence of the original works, which is to convey the content of the media (plot, videography, etc.) and make a profit for its creators. In this sense, the streams are at least slightly transformative, though the argument is admittedly not terribly strong.
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The market effects analysis works much more towards a finding of fair use, however. It is easy to assume that these streams have a negative effect on the market for the original copyrighted work. After all, the hosts are providing, free of charge, something that the user would have to otherwise purchase independently (on blue-ray or the iTunes store, for example), or purchase a subscription to a legitimate service in order to view. Not so fast, however -- it is reasonable to infer that users of illegitimate websites, who are willing to risk potential lawsuit susceptibility, exposure to malware and pornography (which these sites are lousy with) and terrible viewing quality, simply do not have the means (or perhaps the desire) to otherwise view the shows. The streams do not have a negative market effect, then, as these users would rather choose to not view the media if their only option was to pay for it. Additionally, if a show is already licensed to a legitimate platform, these streams are not harming the potential market for show licensing. Finally, these streams might actually have a positive market effect, as they increase the overall viewership of the media, which results in a greater market for merchandise, more website hits, and increased pop-culture visibility and relevance.
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ChrisWollerFirstEssay 2 - 04 Jan 2015 - Main.EbenMoglen
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Media Free-For-All

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  A similar phenomenon has occurred in the music industry. Unfiltered access to music via file-sharing created a sea-change in the industry. While one can still acquire music illegitimately (torrents, for example), there are now several legitimate ways to enjoy volumes of music, free of charge (e.g. Pandora, Spotify). Many artists have also opted to give their music away for free. If anything, the music industry meltdown has taught us that industries will adapt to complete availability of their media. As a result, music has become available in a more affordable and efficient manner. A similar phenomenon seems likely, or at least possible within the visual media industry.

Finally, media is information. Granted, an episode of South Park is not equivalent to a wiki explaining how to change a tire or describing the human genome. Nonetheless, popular media is an inevitable element of life, particularly in social contexts. Access to media is conducive to social adaption and bonding. Having common interests and experiences with peers raises one’s confidence within social groups. This confidence allows individuals to self-actualize, and, as a result, to maximize their life experiences as well as what they can contribute to society. An individual should not be disadvantaged only because they do not have the socioeconomic means or access to experience the relevant popular culture touchstones.

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I think the essay could be improved by sharpening its subject. If it is an argument for eliminating an exclusive right to first distribution presently allocated to copyright holders by all copyright systems complying with the Berne Convention, more than "buzz is good," or "unwatched media are wasted," should be provided. If the point is not that copyright holders should be unable to prevent unauthorized first distribution, but rather that some copyright holders find "free streaming" a good distribution strategy, than the essay can be substantially simplified, although its point becomes rather a small one. If the purpose is to explore the ethics of copyright, the arguments can be put more starkly, and quite briefly, so that your own point of view can be clearly developed at greater length.

Perhaps the best way to begin the edit is to write the sentence that states the point of your essay. the idea you want the reader to take away. Make that the first sentence of the new draft, and develop the idea through the next 750 words. Use the last 200 words to provide the reader a conclusion which is actually a jumping-off point for ideas of her own.

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ChrisWollerFirstEssay 1 - 16 Oct 2014 - Main.ChrisWoller
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META TOPICPARENT name="FirstEssay"

Media Free-For-All

-- By ChrisWoller - 16 Oct 2014

With patience and a little know-how, you can find almost anything you want to watch online, free of charge. Movies, television episodes and live sporting events usually require, at max, five-minutes of searching and link experimentation before they can be viewed on one’s computer screen. Thanks to websites such as First Row Sports and Project Free TV, to provide just two examples, individuals never have to worry about being unable to watch their favorite show or missing the big game.

Of course, the legal legitimacy of viewing media in this fashion is hazy. The truth is that it might not be illegal for individuals to view media on these websites. Still, it is legitimate to wonder why individuals should be allowed to view media at no cost beyond their monthly Internet bills, especially when large expenses are required to produce such media.

Why “illegal” streaming is good, for everybody involved

The truth is that, without use of these sites, a massive amount of media would remain unseen and unutilized. Yes, there are “legitimate” ways to view media online – Netflix, Hulu, HBOGo, etc. – and one can watch usually watch sporting events online with either a cable subscription or a separate, expensive, online viewing package. Nonetheless, the majority of extant movies and television episodes are not available on these platforms. The individual who is watching the episode of their favorite old movie over an “illegal” stream might be incapable of viewing the media without utilizing the websites that offer the stream for free.

One can imagine that the creators of the media are much happier having their content actively sought, seen and engaged, instead of left dormant and forgotten. In the eyes of the some artists and executives, however, individuals viewing these streams are stealing, plain and simple.

This mindset is self-defeating, however. Streaming allows free initial access to media, which can in turn inspire an individual to find a legitimate means to watch. There are several reasons this might occur. First, paranoia of a prospective Napster-esque lawsuit from the copyright owners might cause one to seek a legitimate means to consume the media (objectively, of course, such a suit is incredibly unlikely). Or, once a user has decided they enjoy a program, they might seek out legitimate means of viewing on moralistic grounds, not wanting to “steal” when there are “honest” ways to view the media. One might also seek legitimate means to view programs for strictly pragmatic reasons. Streaming websites are a cesspool of pop-up advertisements, malware and pornographic images. The quality of the video is typically very poor, and the video requires frequent buffering, with constant stops and starts. The streams have a propensity to stop working altogether. Someone interested in a program might just decide his or her viewing needs are better satisfied with a high quality, reliable platform.

Additionally, even if a user does not eventually seek legitimate means to consume media, there are intangible benefits that artists and production companies experience from having their media viewed. The more a program is watched, the more likely it achieves cultural relevance. Economic returns can eventually accrue from becoming popular in the form of merchandise sales, website hits, etc. Industry respect can also result from a show’s popularity. Directors, actors and others involved in the production can have their status elevated, resulting in increased demand for their services, increased attention to their other projects, or, at the very least, more attention to their Twitter feeds. Sure enough, the executive of the most pirated show of all time recognizes the benefits of the “cultural buzz” that occurs when a show becomes culturally ubiquitous. Because of socioeconomic reasons, and the aforementioned lack of access, such ubiquity could not occur without pirating and online streaming.

Media access should be available, regardless

While media does not possess the same utility as open-source software, there are similar arguments supporting unbridled access to media content. While not everyone who watches movies and television is interested in creating, everyone who is interested in creating movies and television does watch. Free access to media, then, gives future artists the reagents with which to create the next generation of similar media forms.

The counterpoint is, of course, obvious: media can’t be created without large financial investments. If everything was free, no money would be made and productions would lose funding. However, under the current system, there will always be someone (the upper-middle class, suburban families, luddites, the elderly) willing to fit the bills currently charged for legitimate access to media. Of course, completely free access to media has the potential to create a free rider problem. But consider -- would this be a bad thing?

A similar phenomenon has occurred in the music industry. Unfiltered access to music via file-sharing created a sea-change in the industry. While one can still acquire music illegitimately (torrents, for example), there are now several legitimate ways to enjoy volumes of music, free of charge (e.g. Pandora, Spotify). Many artists have also opted to give their music away for free. If anything, the music industry meltdown has taught us that industries will adapt to complete availability of their media. As a result, music has become available in a more affordable and efficient manner. A similar phenomenon seems likely, or at least possible within the visual media industry.

Finally, media is information. Granted, an episode of South Park is not equivalent to a wiki explaining how to change a tire or describing the human genome. Nonetheless, popular media is an inevitable element of life, particularly in social contexts. Access to media is conducive to social adaption and bonding. Having common interests and experiences with peers raises one’s confidence within social groups. This confidence allows individuals to self-actualize, and, as a result, to maximize their life experiences as well as what they can contribute to society. An individual should not be disadvantaged only because they do not have the socioeconomic means or access to experience the relevant popular culture touchstones.


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Revision 2r2 - 04 Jan 2015 - 14:53:51 - EbenMoglen
Revision 1r1 - 16 Oct 2014 - 16:54:02 - ChrisWoller
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