Casey Fiesler

Remixers’ Understandings of Fair Use Online (CSCW 2014)

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Fair use policies from YouTube’s “Copyright School”

In honor of Fair Use Week, I thought I would finally throw up a post about the only not-yet-blogged-about paper that became part of my dissertation. This paper covers the exploratory interview study (conducted in 2011) that informed the rest of my PhD work on copyright and online communities. (If you’d like to see the slides for the presentation of this work – my first first-author presentation as a PhD student, eep! – those are available here.)

For this study, we sought “online content creators” and “remixers,” though all of our interview participants self-identified to at least some extent as fan creators – of all sorts of different media, from fan fiction to fanvids to music remix to art. The interviews were pretty open-ended, though some questions were intended to probe their understandings and interpretations of the law by posing hypotheticals. In analyzing the data, we focused on how these understandings tracked (or didn’t track) to U.S. fair use law. There is a lot of detail in the paper (organized by each fair use factor), but these were some of the major themes:

Common legal misconceptions about fair use:
* Perception of noncommerciality as the sole deciding factor
* Blanket exception for educational use
* Addition of attribution as an explicit fair use factor

Additional ethical judgments and norms distinct from perceptions of fair use:
* Distinction between “profiting” from someone else’s work, and commerciality
* More consideration with the “little guy” with respect to market harm
* Potential for “market good”
* Implicit attribution (i.e., you don’t need to credit J.K. Rowling when you write about Harry Potter – everyone already knows)

Importantly, something else we observed is that copyright decision-making is complicated. We identified five major dimensions that tended to go into the “can I do this?” decision: (1) What the law says; (2) What they think the law says (more often than not, different than (1)); (3) What they think is ethical; and (4) Community norms. In some cases, these four things are completely different, as well as (5) What they actually do. An example used in the paper was the issue of writing fan fiction in exchange for charitable donations, in which people’s ethical and normative intuitions are different than their interpretations of the law.

In HCI, there’s a not-really-obligation to think about implications for design, and so here’s one: We should be thinking about design for not only as the law is, but for how people think the law is. In other words, how someone interprets or what someone knows about the law is far more likely to impact their use/behavior than what the law actually says. And sometimes these interpretations are actually that the law is stricter than it really is, colored by scary rhetoric from the websites they use (e.g., go watch YouTube’s “Copyright School” video pictured above).

This study also provided the first evidence in my work (to be followed by even more) of chilling effects. We found both that a lack of confidence about legal knowledge tended to negatively impact creativity or sharing, but also that more knowledge about fair use sometimes made our participants feel empowered and more confident to share their work.

Takeaway: fair use is great when exercised, and learning about how it really works can be a good thing for artists. Rock on, fair use!

For more detail, see the full paper. I presented this work at the conference on Computer-Supported Cooperative Work & Social Computing (CSCW) in Baltimore in February 2014.

Citation
Fiesler, C. and Bruckman, A.S. Remixers’ Understandings of Fair Use Online. CSCW ’14: Proceedings of the 18th ACM Conference on Computer Supported Cooperative Work & Social Computing, (2014).

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