Those of us who grew up in the 1970s probably remember a popular psychic named Uri Geller, who was always on TV back then, bending spoons with his brain, correctly guessing the content of people's doodles and generally blowing the audience's mind. But who could have guessed that his powers would eventually warp free speech and copyright law in the 21st century?
Geller got rich insisting that his supernatural abilities were real, so a number of magicians and skeptics -- most notably James "The Amazing" Randi -- mounted a campaign to discredit the performer. Randi exposed Geller during numerous TV appearances, demonstrating that his mental feats were nothing more than trickery. These old clips, including a NOVA program called "Secrets of the Psychics," have recently begun appearing on YouTube and other video-sharing websites.
This has gotten the alleged psychic, well, all bent out of shape.
Over the last year, he and his business associate have successfully removed many of these clips from the Web by charging that they violate his copyrights. In the 13-minute NOVA program, Geller only claims ownership of eight seconds, yet that was enough for him to file a "takedown" demand with YouTube, using -- or abusing, depending on how you view it -- the Digital Millennium Copyright Act, or DMCA.
The DMCA protects sites like YouTube from copyright infringement claims if, and only if, they quickly comply with takedown requests from copyright holders. These sites have an itchy trigger finger when pressured, often not even asking for proof of ownership. The NOVA program most certainly isn't owned by Geller, nor has he provided proof that he controls the eight seconds in question. He just said that he did.
Using the DMCA, aggressive litigants like Geller and such copyright-hoarding companies as Viacom and Disney can simply make your work disappear if they do not like what you have to say, something that was much more difficult in the pre-digital world.
Even if Geller did own the material, posting the clips would not infringe on his copyrights because of the important U.S. legal doctrine of "fair use." Fair use is an intuitively named concept designed to enable reproductions of copyrighted material in a manner considered "fair." If you aren't using the copyrighted material to mooch off someone's labor, but instead are adding to it for the purposes of commentary, education, parody, news reporting or other transformative uses, then it's fair use. Geller's critics post clips of his old performances not to make money but to engage in a public discussion on his sleight of hand.
When people make overreaching copyright claims just to censor speech they don't like, they are abusing the law. The Supreme Court has consistently held that copyright was designed as a means to promote the dissemination of knowledge and creative expression, not to suppress it. Of course, fair use is not a free pass that allows anyone to copy and distribute anything they wish, but it was nevertheless designed to make sure intellectual copyright and the 1st Amendment can peacefully coexist.
These "copy fights" are first and foremost a free-speech issue. Sadly, many intellectual-property owners and lawyers see it purely as an economic concern. Another problem is that websites often faint at the sound of threatening language in legal nastygrams. It's safer to cave to spurious demands than risk lawsuits from brand-name bullies or obsessives such as Geller.
If YouTube is our new public sphere, we are in trouble, at least when it comes to free speech. YouTube's parent company, Google, is more concerned with its bottom line than anything else, whether it's copyright censorship in the U.S. or political censorship in China.
But all is not hopeless. The DMCA contains a legal tool for resisting unreasonable copyright claims -- the "counter-notice." That's what I filed after YouTube pulled a satirical collage video of mine that mashed up media from another strange staple of my childhood, "Mister Rogers' Neighborhood."
My piece excerpted clips of Fred Rogers saying ominous things such as, "You can never go down the drain" and "boys' and girls' arms and legs don't fall off when you put them in water." (Yes, he actually said that.) The show's copyright owner, Family Communications Inc., filed a takedown notice against my clip in 2006, and it took four months for YouTube to make it available again after I persistently argued that it was fair use. Since then, it has provoked heated arguments on the YouTube discussion board -- a reminder that we should encourage debate and discussion, not suppress it.
As our culture increasingly becomes fenced off, it's all the more important for us to be able to comment publicly on the images, ideas and words that saturate us on a daily basis without worrying about an expensive, if meritless, lawsuit. If we don't defend ourselves, we'll be complicit in letting our freedom erode. By standing up for fair use and against overreaching copyright claims, we can create havens for expression in the age of intellectual property.