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THE ROLE OF COPYRIGHT IN ONLINE CREATIVE COMMUNITIES: LAW, NORMS, AND POLICY A Dissertation Presented to The Academic Faculty by Casey Fiesler In Partial Fulfillment of the Requirements for the Degree PhD in Human-Centered Computing in the School of Interactive Computing Georgia Institute of Technology August 2015 This work is licensed under a Creative Commons Attribution Noncommercial 4.0 International License. THE ROLE OF COPYRIGHT IN ONLINE CREATIVE COMMUNITIES: LAW, NORMS, AND POLICY Approved by: Dr. Amy Bruckman, Advisor Dr. Cliff Lampe School of Interactive Computing School of Information Georgia Institute of Technology University of Michigan Dr. Annie Antón Rebecca Tushnet, J.D. School of Interactive Computing Georgetown University Law Center Georgia Institute of Technology Georgetown University Dr. Eric Gilbert School of Interactive Computing Georgia Institute of Technology Date Approved: June 15, 2015 For the artists, creators, mixers, and poachers ACKNOWLEDGEMENTS This dissertation is the culmination of a long journey that could not have been possible without the support and encouragement of many people along the way. Though I cannot name everyone here, to all of my friends, family, colleagues, and mentors who have touched my life during the last decade, you have contributed and I am grateful. First and foremost, this is a journey that began and ends at Georgia Tech, where I have spent eleven non-consecutive years of my life and have found every one of them rewarding. The students and faculty in the School of Interactive Computing have been a constant source of inspiration and support, particularly my ELC PhD comrades: Jill Dimond, Betsy DiSalvo, Michaelanne Dye, Joe Gonzales, Kurt Luther, and Sarita Yardi. Also, no one completes a dissertation alone, and I could not have done this without the research assistance of fellow students: Jessica Feuston, Shannon Morrison, Gabriel Perez, Bao Vu, and Titus Woo. My dissertation committee, Annie Antón, Eric Gilbert, Cliff Lampe, and Rebecca Tushnet, were invaluable sounding boards and mentors, and made my work stronger. I am also grateful for the generous financial support of a grant from the National Science Foundation. I feel deeply fortunate to have had the opportunity and flexibility to pursue research about which I am passionate. I would also like to thank my research participants who took the time to speak passionately to me about the art that they love. Every fan creator and remixer that I have interacted with for many years served as an inspiration, and set me on this path in the first place. I am grateful as well to Rebecca and other members of the OTW Legal Committee for encouragement and legal sanity checks. I cannot say enough about the impact that my advisor Amy Bruckman has had not only on my work but also on my life. Had she not seen something in me when I showed up at her door as a 21-year-old new MS student, my career path might have been very different. Her brilliant and patient mentorship allowed me to follow my passion, and she exemplifies everything I hope to be as an academic. Finally, the deepest well of my gratitude goes to my father, Steve Fiesler. There are not enough words for the support he has given me throughout my (very long) years as a student. And though my mother could not see the culmination of all this hard work, I know how proud and happy she would be. Thank you all, so much. iv TABLE OF CONTENTS Page ACKNOWLEDGMENTS iv LIST OF TABLES viii LIST OF FIGURES ix LIST OF ABBREVIATIONS x LIST OF LEGAL AUTHORITIES xi 1 INTRODUCTION 1 1.1 Research Framing and Contributions 10 1.2 Research Questions 11 1.3 Overview of Dissertation 13 2 BACKGROUND AND RELATED WORK 15 2.1 Law 15 2.1.1 Fair Use 16 2.1.2 Technological Control: The DMCA 20 2.2 Policy 23 2.3 Norms 26 2.4 Power, Rules, and Conflict 30 2.5 Copyright and Remix in Online Communities 34 2.5.1 Fandom 36 3 REMIX ARTISTS AND FAIR USE ONLINE 40 3.1 Interview Methods 40 3.2 Understandings of Fair Use 44 3.2.1 The Purpose and Character of the Use 44 3.2.1.1 Noncommercial Use 44 3.2.1.2 Educational Use 47 3.2.1.3 Transformativeness 48 3.2.2 The Nature of the Work 49 3.2.3 Amount and Substantiality 49 3.2.4 Market Harm 51 v 3.2.4.1 Piracy 52 3.2.4.2 Attribution 53 3.3 Conclusions and Open Questions 54 4 COPYRIGHT PROBLEMS IN ONLINE COMMUNITIES 58 4.1 Forum Analysis Methods 59 4.1.1 Data Set Limitations 63 4.2 Copyright Problems 64 4.2.1 Avoiding Trouble 65 4.2.2 Dealing with Consequences 68 4.2.3 Fear of Infringement 71 4.2.4 Dealing with Infringement 73 4.2.5 Incomplete Information 76 4.2.5.1 Social Q&A 80 4.3 Conclusions and Open Questions 81 5 COPYRIGHT POLICIES FOR ONLINE CONTENT CREATION 84 5.1 Terms of Service Analysis 87 5.1.1 Methods 87 5.1.2 Results 89 5.1.2.1 Readability 89 5.1.2.2 Copyright Terms 90 5.2 User Perceptions Survey 92 5.2.1 Methods 92 5.2.2 Findings 96 5.2.2.1 Accuracy 96 5.2.2.2 Expectations and Opinions 99 5.2.2.3 Differences in Website Types 100 5.3 Conclusions 102 6 COPYRIGHT NORMS, FORMATION, AND ENFORCEMENT 107 6.1 Interview Methods 107 6.2 Norm Identification 111 6.2.1 Attribution 112 vi 6.2.2 Permission 116 6.2.3 Commerciality 120 6.2.4 Secrecy 125 6.2.5 The Underlying Fannish Value System 127 6.3 Norm Formation 128 6.3.1 Emergent Practice and Observation 129 6.3.2 Migration 133 6.3.3 Formalizing 135 6.4 Norm Enforcement 138 6.4.1 Threat of Sanctions 140 6.4.2 Internalization of Norms 145 6.5 Music Remixers 147 6.6 Conclusion 149 7 CONCLUSIONS AND RECOMMENDATIONS 152 7.1 Sources of Rules 152 7.2 Copyright Behavior and Decision-Making 155 7.3 Recommendations for Online Community Designers 157 7.3.1 Supporting Copyright Conversations 157 7.3.2 Creating Usable Policies 159 7.3.3 Designing for Knowledge and Norms 163 7.4 Limitations and Future Work 166 7.5 Conclusion 170 REFERENCES 172 vii LIST OF TABLES Page Table 1 Overview of research ........................................................................................... 13 Table 2 Types of content creation by participant .............................................................. 42 Table 3 Five dimensions of copyright decision-making ................................................... 56 Table 4 Website information and statistics ....................................................................... 60 Table 5 Website TOS word count & Flesch-Kincaid grade level .................................... 88 Table 6 Surveys and responses ......................................................................................... 94 Table 7 Accuracy by licensing term. ................................................................................ 98 Table 8 Media creation type ........................................................................................... 109 viii LIST OF FIGURES Page Figure 1 An illustration of the Pathetic Dot Theory ........................................................... 1 Figure 2 Images from YouTube’s “Copyright School” video ............................................ 6 Figure 3 Illustration of the Activity Theory triangle ........................................................ 32 Figure 4 Charts of opinion/expectation and accuracy/expectation ................................. 100 Figure 5 Activity Theory triangle with rules emphasized .............................................. 153 ix LIST OF ABBREVIATIONS CSCW Computer-Supported Cooperative Work DMCA Digital Millennium Copyright Act EFF Electronic Frontier Foundation EULA End-User License Agreement HCC Human-Centered Computing HCI Human-Computer Interaction OTW Organization for Transformative Works TOS Terms of Service x LIST OF LEGAL AUTHORITIES STATUTES Copyright Act of 1976 17 U.S.C. §§ 101-810 Digital Millennium Copyright Act 17 U.S.C. §§ 512, 1201–1205, 1301–13321 Fair Use Clause 17 U.S.C. § 107 CASES Authors Guild v. Google 770 F.Supp.2d 666 (S.D.N.Y. 2011) Cambridge Univ. Press v. Patton 2nd Cir. 2014 Campbell v. Acuff-Rose 510 U.S. 569 (1994) Capitol Records v. Vimeo S.D.N.Y. 2013 Cariou v. Prince 714 F. 3d 694 (2d Cir. 2013) Folsom v. Marsh 9. F. Cas. 342 (C.C.D. Mass. 1841) Lenz v. Universal Music Corp. 572 F. Supp. 2d 1150 (N.D. Cal. 2008) Perfect 10 v. Google 416 F. Supp. 2d 828 (C.D. Cal. 2006) Sony v. Universal Studios 464 U.S. 417 (1984) Suntrust v. Houghton Mifflin Co. 252 F. 3d 1165 (11th Cir. 2001) Warner Bros. & Rowling v. RDR Books 575 F.Supp.2d 513 (S.D.N.Y 2008) Williams & Wilkins Co. v. United States 487 F.2d 1345 (Ct. Cl. 1973) 1 The DMCA also added 28 U.S.C. § 4001 and amended 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701. xi SUMMARY Many sources of rules govern our interactions with technology and our behavior online—law, ethical guidelines, community norms, website policies—and they do not always agree. This is particularly true in the context of content production because copyright law represents a collection of complex policies that often do not always account for the ways that people use and re-use digital media. Can you write a story about Harry Potter? Can you sell his portrait on Etsy? Share it on Facebook? Is it permissible to use part of a song in a video you post on YouTube? How much of the song? Intellectual property, once mostly the domain of lawyers and corporations, is now relevant to anyone with an Internet connection and a “share” button. Within these legal gray areas, people make decisions every day about what is allowed, often negotiating multiple sources of rules. How do content creators make decisions about what they can and cannot do when faced with unclear rules, and how does the law (and perceptions of the law) impact technology use, creativity, and online interaction? In the course of this research, I have examined this complex relationship between law, site policy, norms, and technology, and extrapolated a set of design and policy recommendations for online community designers to help better support current practices among content creators.