December 22, 2006

December 22, 2006

*Editor's Note

*Opening Note: Chris Weaver on Looking at the Founders' Conception of Fair Use

*Glancing at the C3 Blog

*Closing Note: Shenja van der Graaf Responds on Fair Use, Privacy Policies, and NDAs

--------------- EDITOR'S NOTE ---------------

Welcome to this week's Weekly Update from C3. As usual, this week's update includes links to all the entries published during the week on the Convergence Culture Consortium Weblog. Also, the site now features tools to favorite the blog on Technorati, so be sure to do so if you read on a regular basis.

This week's update features an opening note from C3 Affiliated Faculty member Chris Weaver here at MIT, who writes in response to the continued C3 discussion surrounding fair use issues, initiated by Jason , by thinking about the Founders' conception of fair use that was a part of the U.S. Constitution.

The closing note this week is a piece from C3 affiliated faculty member Shenja van der Graaf, who examines the call for discussion about fair use as well by thinking about the implications this discussion has on privacy policies and NDAs.

Also, we are happy to announce that former C3 Research Manager and continuing Research Affiliate Parmesh Shahani has embarked on an exciting assignment to head a new ideas incubation lab in Bombay, India for the Mahindra group, one of India's largest business conglomerates ( and a member of the Forbes Top 200 Most Reputed Global Companies List. This new role will enable him to be really close to the ground and track convergence culture in the sizzling Indian economy from an investment as well as research perspective.

And, in the only correction for last week, the bottom of William Uricchio's piece stated that the conclusion would appear next week. Since that was the conclusion, the line was supposed to indicate that the beginning of that piece had been available in the previous week's opening note. We apologize for the error.

If you have any questions or comments or would like to request prior issues of the update, direct them to Sam Ford, Editor of the Weekly Update, at

--------------- OPENING NOTE ---------------

My Turn

By: Christopher Weaver

Jason Mittell opened Pandora's Box and William Urrichio's excellent addition to the discussion suggests further amplification. If Castenada said that, "those who do not read history are doomed to repeat it," then Professor Urrichio's reference to the Statute of Anne and its obvious influence on the first US copyright statute of 1790 is critical to understanding what has flowed from that time. It is important not only from the standpoint of copyright holders but copyright grantors, because that is where I believe we in the United States lose sight of the original intentions of the Founding Fathers.

So important was the concept of authorship and invention, that in the very first Article of the US Constitution we find clear language stating:

The Congress shall have power...

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.[1]

It is clear the Founders considered the issue of invention and authorship so important that they wrote this clause into the Constitution just after the establishment of the postal system and prior to addressing a regional judicial system. The whole concept of creativity and invention was a central part of the social wealth that the Founders envisioned would supply incentive and vibrancy to the fledgling colonies whereby intellectual property development created by a special few would ultimately be owned by all. This creative development was to be fostered by the public "loaning" certain rights to Inventors and Authors for a limited period of time so as to provide those Inventors a means of capitalizing upon (and profiting from) their creations--recognizing that all the while the underlying principle behind this temporary grant of license was that the true purpose of the system was to provide a means whereby invention was promoted so as to ultimately revert to the "common good" in a reasonably short period of time. In all the years from the late 18th century to the present, it is important to understand that in the United States "we the People" have been the ones from whom these numerous "carve out" rights have consistently been taken. Once viewed in the light of public ownership and not corporate entitlement the social experiment of purposely limited protection of invention and creative development takes on a very different dimension.

Public information policy has even more importance in an age when information is moved through bits and not atoms. Until recently, it was assumed that one could buy an author's copywritten work, discuss it, perform it, trade it, loan it, reference it, donate it or resell it. There was previously assumed to be an underlying tension between the rights of the public weighed against the limited rights of the author. That underlying assumption is now being challenged with an attempt to value (read control) an author's rights far in excess of the general public. For copyright holders to hijack public policy to the point of de facto control over their works would be the ultimate myopia on the part of our government. As recently as thirty years ago, it was accepted that copyright was imperfect and provided only limited controls over protected works. Special interests have created protected positions for themselves at the expense of the general public and the inherent tension between the public good and author's rights promises to spiral out of control if there is not a serious reexamination of public need versus corporate want.

As powerful and compelling as the promise of the internet and related digital media are, what are the ramifications to freedom of access and thought when this same technology makes possible a type of monitoring that can restrict, track and report just as easily as allow freedom of access? With digital technology, copyright holders can truly control access to their work. But with recent congressional legislation such as the DMCA[2] and the Sonny Bono Copyright Term Extension Act, as well as the European EUCD[3], where does an author's ability to control access on virtually every level benefit the public and promote the progress of science and useful arts?

Digital technology has allowed individuals a power they never possessed before (such as being able to print one's own copy of a work), even as it has provided a technical means for IP owners to argue enforcement of ever more invasive (read un-limited) "rights". The dynamic that has worked in some measure for over one hundred forty years has to change to reestablish a new balance--one that works for authors but must also be palatable to an increasingly confused public. How can one be expected to obey laws they don't believe or cannot understand?

These are heady issues that have no easy answers. There is an ongoing battle being waged by special interests who want their clients to profit from works long after what would appear was contemplated by the Founders. There are independent groups of legal scholars who have taken a stand to try and maintain the balance as well as free speech advocates such as the EFF[4] and groups responsible for overseeing international IP.[5] But unless a serious dialog is started not between warring copyright attorneys but the general public and their representative government(s) we, the People, stand to lose something crucial to what the Founders assumed was a basic right. The stakes are that high.

[1] USC, I, §8, cl.8
[2] Digital Millennium Copyright Act
[3] European Union Copyright Directive
[4] Electronic Frontier Foundation
[5] World Intellectual Property Organization (WIPO)

Christopher Weaver is a Faculty Advisor to the C3 Consortium and teaches part-time in the Comparative Media Studies program at MIT. He founded Bethesda Softworks, one of the preeminent entertainment software companies, in 1985 and was the Chief Engineer to the Congressional Subcommittee on Communications from 1980-1984. He was also appointed a special science advisor to the Commerce Committee by Chairman Hon. John Dingell and a telecommunications advisor to the Office of Technology Assessment (OTA). As both an IP creator as well as advisory government regulator, he brings his unique insights to the topic of copyright and "fair use".

---------- NEWS FROM THE C3 BLOG -----------

Viacom Drops Out of Plans for Network-Driven YouTube Competitor. With all the talk about a corporate-driven repository for video content, NBC-Universal and News Corporation are left to keep the dream alive.

Ten Day Take--Contest for Winning User to Develop Pilot Episode. A contest for user-generated content through Comcast Ziddio will pick a winner develop a pilot episode, while the making of that pilot will be a reality show for Comcast Ziddio and Comcast On Demand.

New Web Program Follows Congdon's Life. The former Rocketboomer and current ABC News video blogger will be the focus of a new Blip.TV Internet show featuring her life and career that will be distributed across multiple platforms.

Dan Rather Reports Distributed on DVD. The HDNet news show continues to develop a following as the high-definition network attempts to move its reputation beyond more than just an impressive picture.

Finnish Television Event Offers Users Chance to Choose Ending During Show by Text Message. Viewers will be able to choose which direction the plot will go as the show airs, with programmers airing a variety of changed scenarios based on what the majority of viewers choose.

Bill Gates Comments on Digital Rights Management; ABI Reports a Lack of Interest in Movie Downloads. Questions about digital rights management are raised when Bill Gates explains why he does not think DRM is working, while a recent survey claims only 5 percent of people interested in watching video through the Internet are interested in downloading films, either legally or illegally.

Scarcity and Plenitude: The Shifting Power Structure of the Publishing World. A recent weblog commentary on the artificial claim of scarcity that continues to benefit major publishing regime brings to mind Grant McCracken's theory of plenitude in today's media environment.

Are Interactive Contests Meaningful Communication or Cheap Gimmicks? A Question Posed from a Fan Message Board. Soap opera fans on a Media Domain message board raise the question of raise questions as to the conflict between promotional contests and investing in shows themselves.

iTunes Sales Dropping? Questions About the Continued Growth of iTunes and the Controversial Meanings of Numbers. Are iTunes' sales dropping? A Forrester Research report raises questions as to the meaning of research and the iTunes business model.

Branding Education: How Higher Education Is All About Brand Management. A recent weblog commentary and a variety of stories about the meaning of university brand names reminds academia that education is very much related to brand management.

A Weird Comic Dialogue: Conan O'Brien, Horny Manatees, and User-Generated Content. Conan O'Brien's offhanded comments sparks an Internet phenomenon, a transmedia comedy experience, a barrage of user-generated content, and "a weird comic dialogue."

FTC Cracks Down on Corporate Attempts to Emulate Viral Marketing without Disclosure. Recent discoveries of astroturf marketing attempts revealed to public scandal may get the government involved.

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--------------- CLOSING NOTE ---------------

Fair Use, Privacy Policies, and NDAs

By: Shenja van der Graaf

I really enjoyed reading Jason Mittell's piece, especially his concluding questions concerning the ways that we as media scholars and producers can cooperate and work toward common goals. Being part of C3 with wonderfully smart thinkers and creatives should be an incredible mind-boggling experience where we can learn from each other. Throughout this year I have been lucky to run into several of our partners at various conferences indicating similar interests and providing for serious conversations about issues including ways to measure performance in virtual domains, user-driven innovations from a marketing angle, and identity theft which is a huge problem in virtual environments - for instance, people who create websites that look like the company's site where they want other people to enter their user name and password by promising a free copy of some sort so that they can steal the account.

About two months ago Microsoft released a white paper entitled "The Identity Metasystem: Towards a Privacy-Compliant Solution to the Challenges of Digital Identity." At the Berkman Center for Internet and Society, Urs Gasser and I shared our concerns regarding Microsoft's claim that the i-card model is "by design" in compliance with the unambiguous and informed consent requirement as set forth, for instance, by EU data protection law. A "hardwired"-argument (obviously a variation on the theme "regulation by code") may be valid if one focuses on a particular relationship between one user and one identify provider and/or one relying party. However, at the aggregated level, the i-card model's complexity - i.e. the network of informational relationships between one user and multiple ID providers and relying parties - increases dramatically. If we are serious about the informed consent requirement, one would wish that the user could anticipate not only the consequences of consent vis-à-vis one ID provider, but would understand he interplay among all the components of the ID-system. Even in less complex informational environments, previous experience however has shown that the making available of various privacy policies isn't the solution.

From this viewpoint, it may be a starting point to look for an answer by creating "a system enabling web sites to represent privacy policies in a simple, iconic fashion analogous to food labels. This would allow consumers to see at a glance how a site's practices compared to those of other Web sites using a small number of universally accepted visual icons that were both secure against spoofing and verified by a trusted third party." (p. 19, FN 23.) Such a system could become particularly effective if the icons - machine-readable analogous to creative commons labels - would be integrated in search results and monitored by "Neighborhood campaigns" similar, for instance, to

Aside from the fact that Microsoft's paper leaves some important issues unaddressed, the issue seems prevalent. The interesting issue for me though is not necessarily the content rather the accessibility that we have as media scholars to media companies struggling with issues such as the one briefly outlined. So, in addition to Mittell's points made about fair use and scholarly research, I would like to point out that although media scholars and media companies oftentimes in theory agree upon relevance and validity of research topics but in practice, let's speak for myself, I have to fight with the legal department to be able to conduct research that is acknowledged to be very relevant, but businesses are reluctant to participate in.

I won't name the company here, but this is part of an NDA I was recently given when I was to work on a project set out by the company to investigate the way the organization developed its own positions in conjunction with the customers' role in new product development, and the implications for the company's competition position.

"Confidential Information includes, but is not limited to, x business practices and partners, employee information, any discussion and materials regarding x technology or projects in development at x or between x and the individual."

The reader will understand immediately that 'business practices' are exactly what needed to be questioned, but that was not permitted. There are many specificities about what business practices can entail but to make a long story short, the answers that this particular media company was looking for was enclosed in the NDA. Obviously, I do understand that there are many sensitivities surrounding firms that cannot be made public, but to me, this is just another example - just like the fair use issue Mittell raised - that seems to hold us back to fully trust each other and learn from each other. There must be more fruitful ways to ensure that the media scholar-company relationship is not a one-way dynamic but an open conversation.

Shenja van der Graaf is an international scholar who has studied at Utrecht University, Leiden University, the Comparative Media Studies program at MIT, the Berkman Center for Internet and Society at Harvard Law School, the Oxford Internet Institute, and the London School of Economics, where she is currently working on her doctorate. She studies the Japanese, American, and European media industry and markets.


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