“People always like to say that fair use is gray, but it’s actually not true. Fair use can be very clear.” -- Corynne McSherry

At a time when the number of social networks and video platforms increase rapidly each day, some of us ask ourselves whether this kind of increase brings along more liberties or more problems with it. While an artist or a filmmaker now has more options as to where she can display her work, the audience also has more alternatives when it comes to watching videos online. When I attended the Open Video Conference in New York City three weeks ago, I had the opportunity to hear Corynne McSherry speak and realized once again the significance of several issues like fair use, copyright laws, and freedom of expression online, but more importantly how all this will play a major role in the future of the Internet.

Corynne McSherry is the Staff Attorney and Kahle Promise Fellow at the Electronic Frontier Foundation and specializes in intellectual property and free speech issues. Having always been interested in the tensions between protecting the rights of authors and creators as well as the rights of second authors and creators, McSherry became a practicing lawyer and then joined the Electronic Frontier Foundation, where she and her colleagues work to protect fair use, privacy, and civil liberties online. From government control over sites like Facebook and Twitter to using copyrighted material under fair use laws, McSherry shed light on many questions about the use and re-use of content on the web during our interview.


F.A. With the speedy increase in the number of social network sites like Facebook, Twitter, and Friendfeed, would you say that there is also more room for freedom of expression on the web nowadays?

C.M. I think there is no question that the web has become increasingly an extraordinary forum for speech and communication. Every month, we find new ways in which this can occur. The flipside that I worry about and we try to pay attention to at the Electronic Frontier Foundation is making sure that we have the systems, the laws, and the practices in place so that speech is not shut down improperly.

F.A. Some of these sites were banned and shut down in countries like Iran and China. To what extent can we prevent governments from having control over people’s rights to freely express their opinions on the Internet? Is this equivalent to attacking freedom of speech?

C.M. I think whenever a government shuts down a means of expression, it’s certainly shutting down speech. The position that the United States courts has historically taken is that the best answer to speech you don’t like is more speech. The way you respond to speech you don’t like is not to shut it down, but to tell the other story so that people can make up their own minds. That’s what the Electronic Frontier Foundation advocates and believes should be the rule that governments and private parties follow.

F.A. Many filmmakers and video artists use copyrighted material, such as a segment from an old film or a piece of music, in the creation of their content. And most of them encounter problems during the distribution stage because of copyright issues. Can you tell me what fair use is and when copied content can be protected under fair use laws?

C.M. In the United States, the concept of Fair Use was developed in order to mediate the tension between copyright and free speech and to make sure that creative re-use was possible. There are four factors you consider when trying to decide whether something is in fair use or not. First of all, you look at the purpose of the use: Why a person needs to use an original work and what they are doing with it. Courts will look at whether the purpose of the use is commercial or not and whether it’s transformative, meaning: Are they using it in a new and different way from how the original creator intended?

Let’s say you take a section of a book and put it in a review of that book. Now that becomes a whole different context for the work. In a case like this, the court first looks at whether the original work is creative or not, whether it’s factual or fictional, because the more creative a work is, the more copyright protection it gets. The third factor is how much you took and whether you took more than you needed. For example, you could take quite a chunk of an original work if you needed that much to accomplish your purpose. On the other hand, if you don’t need more than a snippet in order to do a review, then the court will be suspicious if you take more than that.

Finally you look at what’s called “Market Harm” to see whether your new use is going to harm the market in regards to the original work. Market Harm here means providing a substitute for the original work in order to make people go to what you created rather than the original. The court looks at all of these factors and comes to the conclusion of whether your use is fair. This can be frustrating for people, because it seems like there are a lot of factors to think of. But on the other hand, when all these different factors come together, they lead to a question you should ask yourself: Am I really doing something new and different with my work? Am I harming the creator or not?

For example I have a case in which a 29 year-old mom took a video of his son with a Prince song playing in the background. The song is less than half a minute. So to me, there is no question that it is a fair use of the Prince song. Alternatively, it’s true that if you make a copy of a song, burn it to a CD, and sell it on the street, that’s probably not going to be a fair use. That’s just making copies for commercial purposes. People always like to say that fair use is gray, but it’s actually not true. Fair use can be very clear.

F.A. Many movie classics in the public domain are being distributed by film distribution companies. I wonder if there is actually a lot of content in the public domain or is most public domain content under the control of corporations? If the latter is the case, does that defeat the purpose of public domain?

C.M. One of the projects that I believe is quite important is trying to make sure that public domain material is made accessible. And that’s not easy to do, because you need resources to do that. This a very important project that a lot of different people should be involved in, because it’s not just films, but books and magazines—there’s all kinds of content that is in the public domain, but it doesn’t do anyone any good if no one knows about them.

F.A. How can a filmmaker register his content onto Creative Commons and what are the benefits of joining Creative Commons?

C.M. Creative Commons licenses are a creative and smart tool for people who want to make their work available more broadly than normal copyright laws would allow. It’s a way of saying, “Yes! You can use my work in all these different ways, and you don’t have to ask me.” That is very helpful, because it allows other people to make use of a work and spread it around to the world. Sometimes you see people making re-uses of a work and creating something that the author would never have thought of.

Another thing that’s great about Creative Commons licenses is that you can set the terms of your participation in that community. If you want attribution, you can say that. You can make sure that the re-uses are non-commercial. This gives authors extraordinary amounts of flexibility in terms of how to make their stuff available, and at the same time because everybody understands these universal licenses, you take out a whole lot of red tape. Without Creative Commons licenses, you can have a situation where someone might want to use your work, but do they really want to go through the rigmarole of finding and contacting you? That’s a cumbersome process that is going to inhibit the re-use of your work. So by using a Creative Commons license, you gain the control of setting the terms of the re-use and also signal that you want to be a part of this remix community. Plus you’re also saving yourself a lot of trouble.

F.A. As the number of people who upload their videos online is increasing, would you say that YouTube is turning into a monopoly?

C.M. I’m not sure that I would agree that YouTube is necessarily a monopoly. I mean YouTube is an extraordinarily huge player in the market, but there are alternatives for people to take advantage of. I think there has to be a lot of different platforms for people to share their work, because YouTube has rules that maybe not everyone wants to agree to. So I think it’s very very crucial that they not be a monopoly player. And I think the questions of whether YouTube should be paying people to put their content on there, you know… I think people don’t have to post their content on there if they don’t want to. And it seems like lots of people are happy to put their content up without any compensation from YouTube.

For more information on EFF, please visit www.filmannex.com/EFF or www.eff.org

Interview by Eren Gulfidan.