Friday, October 26, 2012

Hedges about the law

A couple of weeks ago, I gave a presentation at a TED-inspired venue called MITE Night (Most Interesting Thing Ever Night) about the challenges in communication that are specific to geeks (or nerds – I don't distinguish between the two). After some deliberation, I chose to present with slides as visual aides, using pictures instead of text (except when quoting someone). In the process of preparing, I came across some video clips that I thought would fit well with my presentation.

The first video clip I wanted to use was about ten seconds of a video entitled An Engineer's Guide to Dating by An Engineering Mind. As far as I can tell, this video was created just for fun and was strictly not for profit. The second was a 16-second clip of The Big Bang Theory – just long enough for a single joke. And the third video was the first few seconds of Rick Astley's Never Gonna Give You Up music video (because rickrolling is a sort of online sport).

Of course, these materials are all copyrighted, so I needed to be sure that my use of them was legitimate. The legal doctrine of fair use attempts to describe some common exceptions to copyright law. These nebulous guidelines fail entirely to make clear what is and is not acceptable but give some guidance. But, as my use was of a small portion of each work, as it was for a noncommercial and educational purpose, and as my use of each work would either not affect the markets at all (except perhaps by advertising for the works), using these clips in my presentation is a textbook case of fair use.

I'm somewhat experienced with public speaking and I anticipated some of the common problems. Accordingly, I didn't want to rely on an internet connection, so I tried to put the video clips into my slides. The problem is that although my use of these copyrighted materials would be protected by the doctrine of fair use, I had no legitimate way to download them and embed them in my slides.

As I'd found the video clips I wanted on YouTube, the easiest way to download them would have been from the site itself. But YouTube doesn't provide a way for people (except for the people who uploaded the videos in the first place) to download videos. One reason might be to encourage traffic to the site. Another is clearly copyright protection. If copyrighted materials could be posted and downloaded at will, YouTube would be responsible for being the means by which people pirated countless copyrighted videos. By forcing people to go to the site to watch videos, a video whose legitimacy is called into question can be immediately suppressed. Using one of the many tools that downloads videos would have been a clear violation of YouTube's terms of service, regardless of the fact that my use of the materials in question would have been protected by fair use.

Another way I could have gotten the videos would have been via a DVD (well, two of the three, as I don't think An Engineering Mind has ever made DVDs). I could have ripped (extracted) the video files from DVDs and then I could have selected just the few seconds of each that I wanted and put those videos into my slides. But DVDs have a copy protection mechanism on them. It isn't effective at protecting anything, but it does make the act of ripping a DVD illegal because of the Digital Millennium Copyright Act (see the External Links section for the full text). As before, my use of these videos would not have violated copyright law but would have been a violation of a measure whose sole purpose for existence is to enforce copyright law. I should add that neither the current list of exceptions to the DMCA or the list of exceptions that will take effect in January 2013 allow this action, as I'm not a university professor or a student of film.

I could have, of course, simply found video clips on some torrent site and downloaded them. Torrents aren't illegal in the same way that websites aren't illegal, but downloading an entire episode of Big Bang Theory, whether or not I only ever used 15 seconds of it, could have caused legal trouble.

There is also the issue of enforcement. If I ever went to court over my use of copyrighted materials, the decision about whether or not it was fair use would be decided arbitrarily by some judge. I might get lucky; I might not. What's more, I can't afford legal counsel on the scale that the RIAA and MPAA already employ. I'd have no reasonable hope of winning the case, even if I were clearly in the right.

As for preparing slides that would work offline, I was out of ideas. Especially in the short amount of time that I had to prepare, there wasn't a way for me to store these videos on my computer and embed them in my presentation. I was unable to get either Keynote or PowerPoint to embed YouTube videos directly and I eventually went with a Google Presentation.

Of course, I had trouble getting online when I arrived. Since all of my slides were online, the presentation started late and the videos didn't work even after I got online. The presentation wasn't ruined, but it was disappointingly unpolished.

As I thought about these laws and behaviors that we use to enforce copyright law, I was reminded of the Pirkei Avot, which contains the instruction to "make a hedge about the law" (see this translation, which renders the phrase "make a safety fence around the Torah."). The purpose of this hedge was to help people be sure they never violated the law, which was of paramount import. I think this has great theological value; in fact, there are ways in which I hedge about the law in my personal behavior. But when we make hedges that prohibit others from doing otherwise legitimate things – in religion or in anything else – we must be extremely cautious.

We've clearly passed the point of reason with these laws. These hedges have taken the already crippled doctrine of fair use and rendered it completely useless. My troubles presenting when I was clearly doing something legitimate are not the only example of consumers' rights being ignored. It's time that we reformed our laws and our enforcement of them. The doctrine of fair use needs to be well enough defined and protected that ordinary people can exercise their rights in its regard without fear of unjust repercussions.