CAPTURING FAIR USE FOR THE YOUTUBE GENERATION: The Digital Rights Movement, the Electronic Frontier Foundation and the user-centered framing of fair use

Abstract

This article undertakes an analysis of strategic framing strategies in the Digital Rights Movement by the movement's central Social Movement Organization (SMO), the Electronic Frontier Foundation (EFF). Through analysis of a series of interviews with key members of the EFF and analysis of the EFF's ‘Endangered Gizmos’ campaign in response to the MGM vs Grokster case, this article shows how the organization strategically frames consumers as users' and fair use in user-centered fashion. In so doing the EFF develops a legitimizing rationale for expanding consumer privileges in copyrighted works. The analysis shows that the user-centered notion of fair use articulates with broader historical and emerging trends in media consumption/use and thus finds accepting audiences both within the movement and outside of it.

Keywords:

• social movements
• strategic framing
• fair use
• digital rights
• digital rights management (DRM)
• electronic frontier foundation (EFF)

Notes

The DMCA makes a distinction between TPMs that control copying and those that control access to a digital work. This distinction allows users to circumvent copy control TPMs because they restrict fair use but does not allow users to circumvent access control TPMs because they effectively control the terms of a license agreement which when negotiated (typically through a click through method) effectively surrender fair use privileges. However, the DMCA outlaws the distribution of all circumvention technologies meant to defeat TPMs and as such makes even the allowances on circumventing copy control mechanisms unachievable because a user would have to actually design the circumvention technology since he or she could never get it from a vender.

Fair use was codified into the copyright statute in 1976 and allows owners of legally purchased copyrighted material to exercise a copyright owner's rights without his/her permission for the purposes of ‘criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’. The extent to which one may exercise fair use is limited to ‘(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’ (‘United Stated Copyright Act’ 1976).

Without a check on copyright, copyright owners would have too much control over ideas in print or other fixed media and could stand in the way of innovation. Further, such control over ideas would also impinge on the right to free speech. Thus fair use is seen as a guard against the over extension of owners' rights.

For a review of the growing literature and the new form of convergence see (Hartley 2005, 2006; Jenkins 2006a; Postigo 2003, 2008; Taylor 2006).

Admittedly there are numerous common law cases that are central to the definition of fair use. The Constitution and the Copyright Act however, are the most prominent for users and copyright owners alike and are foundational when interpretations of law during debates about copyright ensue. The DMCA is not generally seen as foundational in its definition of copyright and fair use even though its provisions have had great consequences for IP doctrine. The reason this is the case is that in many instances the DMCA and its consequences is the object of debate.

The property right has other philosophical underpinnings that have been culturally accepted and which give the concept of a property right its rhetorical force. These include Locke's concept of the ‘mixing of labor’ with a raw material, Mills idea of the greatest happiness to the greatest number, and the Kantian construction of rights as existing only with in the auspices of the state. The US Constitution's treatment of intellectual property is more utilitarian and even Kantian than Lockean, even though the Lockean concept is today more culturally resonant. Locke's concept of ‘mixing of labor’ is rooted in an a priori God-given right to survive (i.e. one needs property to survive therefore the property right is connected to the God-given right) on the other hand, the Constitution's language sounds patently utilitarian and Kantian. If one examines the IP clause in the constitution one can see that the IP rights are created by the state (a Kantian approach to rights) and only created because it is believed that they will incentivize the creation of more IP goods leading to greatest happiness to the greatest number.

This has started to change as online music distribution services move away from a model using TPMs like digital rights management (DRM) systems to enforce licensing. In many ways this is a result of the Digital Rights Movement's role in hactivism. In February 2006 Steve Jobs, CEO of Apple, announced that because of the various cracks to encryption that inevitably following the release of encryption technologies, the industry could not support the DRM model in the long run and called on the music industry to license its catalogs free of DRM.

This article will use the term user or fan from this point to refer to consumers as I believe the designations are a more accurate representation of today's content consumer.

Whether fair use is a right is debated among legal scholars.

MGM vs Grokster was a landmark case that could have potentially over-turned the Universal vs Sony ruling which freed technology makers from liability in contributory infringement so long as their products had substantial alternative legal uses.