When the history of intellectual property law is written, January 12, 2009 should be marked as a decisive moment. It was the day that my friend, fellow House Next Door contributor and sometime filmmaking partner Kevin B. Lee saw his entire archive of critical video essays deleted by YouTube on grounds that his work violated copyright.
Regular readers of this blog are familiar with Kevin's work. He's the New York-based publisher of Shooting Down Pictures, a film history and criticism website dedicated to watching and discussing each of the 1,000 feature films cited on They Shoot Pictures, Don't They? For years now, Kevin has been writing about each and every film on the list, starting out with a personal, critical essay, then segueing into a compilation of excerpts from various works of history and criticism. His goal was to give his audience a sense of a film's place in modern culture and collective memory.
Some of his entries were accompanied by freestanding video essays that used ripped scenes from DVDs and voice-over narration (by Kevin or a guest critic; I participated in two essays myself, on The Outlaw Josey Wales and They Died with Their Boots On). I can't point you to those pieces because they're gone. So is the rest of the approximately 300 minutes' worth of work Kevin posted to YouTube, working solo or in collaboration with fellow critics, including Jonathan Rosenbaum, Chris Fujiwara, Mike D'Angelo, Richard Brody, and many House contributors.
Kevin's trailblazing example inspired me to give up print journalism last year and concentrate on filmmaking, and make video essays—criticism with moving pictures—a key part of my new life. I've been privileged to work with Kevin on video essays for the Museum of the Moving Image, which believed in the critical relevance and legal sturdiness of the format and asked us to do series on the films of Oliver Stone and the opening credits of HBO's The Wire. Many other critic-filmmakers have followed in Kevin's footsteps, including Jim Emerson, publisher of Scanners, who dove into the pool with a wordless video essay tied into The House's "Close-Up Blog-a-thon," and who recently uploaded a ripped DVD clip from Warner Bros' The Dark Knight to augment his recent series of articles attacking the film for narrative and visual sloppiness.
Can a critic argue without clips? Sure. Film criticism has largely done without external accompaniments for a century and can continue to do without them. But it's important to note that clips and still frames have been a central part of cinema studies since its inception. Anyone who's attended a film history or theory course knows how valuable they are. Clips often determine the difference between learning something and truly understanding it. They're quotes from the source text deployed to make a case. Take them away, and you're left with the critic saying, "Well, I can't show you exactly what I mean, so I'll describe it as best I can and hope you believe me."
This, in a nutshell, is the defining difference between criticism pre- and post-millennium. For the first time ever, when someone says to a critic, "Show me the evidence," the critic doesn't need to unlock a film archive vault or even haul out a DVD player to produce it. He can call it up online anytime, anywhere, for anybody.
The implications are astounding. The technology's potential has only begun to be tapped. And as you know, there's more to it than classroom-style argumentation. Digital editing software and DVD-ripping technology permits anybody with filmmaking skill and the right tools—say, Handbrake to rip discs, MPEG Streamclip to convert them to edit-able format, and iMovie or Final Cut to put the pieces together—to manipulate commercial media in all sorts of ways, then post the result on the Internet. Suddenly mass entertainment became as malleable as paper or clay. The combination of editing software, DVD- and CD-ripping technology and YouTube led to a kind of creative Wild West, with non-professionals mining, sharing, re-editing and posting copyrighted content with impunity. Some of the efforts were clearly fresh and vital: Kevin's pieces; cheeky mash-ups like Melbelinkie's "40 Inspirational Speeches in 2 Minutes"; the exuberant work of Goldentusk, whose copyright-flouting theme-song spectaculars have given me more pleasure than any stage or screen musical I've seen recently.
But of course, the vast majority of the copyright-flouting stuff on YouTube was just plain theft: people figuring out they could get something for nothing, then sharing it with strangers. There are entire YouTube channels consisting of ripped DVDs or the contents of somebody's record collection. There was so much of it, proliferating at such a terrifyingly rapid pace, that the Viacoms and Time-Warners of the world doubtless began to feel like store owners huddled behind a counter during a nonstop orgy of looting. Something had to be done.
And it finally was. As you read this, the west is about to be crisscrossed with fences and railroad tracks thanks to digital watermarking and steganography, processes that embed invisible codes in commercially reproduced audio and video. These practices allow copyright owners to detect when their products are reproduced and posted online (via automated software: nobody has the manpower or time to do it personally), then send emails to the publishing website demanding that the work be removed. The sites generally oblige, no questions asked, because (here we go again) there aren't enough hours or people to examine each new posted work and decide if it adheres to the principles of fair use—and even if the sites were bold enough to attempt such judgment calls, the media companies and artists' estates would sue the hell out of them until they relented and did as they were told. YouTube's current definition of "The Right Thing" is, "Whatever makes life easiest."
For DVD-rippers of all sorts, the start of 2009 feels like the beginning of the last act of The Godfather—the point when all family business gets settled at once, spectacularly and in public. In the past few weeks, I've seen a few of my rip-dependent video essays (most of which I believe I could defend as fair use-exempted work) taken off YouTube or denied publication in the first place. For the the most part, attempts to appeal the decision appeared to have been round-filed by the company. I've heard similar war stories from Kevin, Jim Emerson and House contributor Steven Boone, whose mash-ups started vanishing from YouTube a few weeks back.
If you believe you've got a legitimate objection to a takedown notice, good luck pursuing it. YouTube makes it as difficult as possible for individuals to make their case. The company offers Google's main switchboard number as its only readily apparent public contact point (call it and you get a dead-end voicemail menu). When YouTube users try to dispute a takedown, the company typically responds with vague boilerplate emails that translate as, "Run along, kid, you bother me."
Even filmmmaker/rights holder disputes that seem to end well have ominous undertones. This past Friday, for instance, I uploaded a wordless video essay to YouTube that employed clips from past and present musicals to show the visual signature and influence of director-choreographer Busby Berkeley. Within hours of processing, I got emails informing me that the piece had been disabled due to copyright claims from NBC Universal (owners of The Big Lebowski, one of several modern films quoted in the piece) and the owners of the song "I Only Have Eyes for You," featured in the Berkeley-choreographed musical Dames. I disputed both claims. NBC Universal and the "Eyes" rights holders backed off, but only partway. The Berkeley piece was restored as of late last night, but the embedding function is currently disabled. My short documentary about the animator Bill Melendez ("A Little Love") was likewise flagged by the owners of "Peanuts." But rather than automatically block playback or disable the audio, the rights holders let it stay up (and be embedded elsewhere) while reserving the right to monitor viewing levels and add commercials later.
These seem like OK compromises until you consider the implications: the distributors of art and entertainment are, to greater or lesser degrees, being permitted to dictate the terms under which their products can be quoted, interpreted, parodied, examined or otherwise discussed.
Kevin has copies of all his work, and I'm sure it will show up again somewhere, sometime. But the obliteration of YouTube as a global platform for his voice is a crime of greater magnitude than anything he did to create the video essays in the first place. YouTube is the town square of the 21st century—rather like a gigantic virtual mall that is, technically speaking, a private space, but which operates as a public sphere: a gathering spot, a cultural and political crossroads. By scourging Kevin's work from this crossroads and banning his video essays—and, potentially, all similar work—from YouTube, the company is allowing the powerful to muzzle the near-powerless. And it is endorsing the idea that in cases involving intellectual property law and the Internet, filmmakers can be deemed guilty, silenced, then made to plead for their right to speak.
There's also an unspoken class bias at work here, a bully mentality that chooses its targets based on who's likely to fight back and win. Consider commercial TV, which is filled with programs that routinely air copyrighted material without permission for purposes of journalism, satire or simple entertainment. The Daily Show and The Colbert Report don't ask permission to air any of the news clips they slice and dice each night for yuks; they consider a network's onscreen logo to be acknowledgment enough, and their assumption is almost never challenged. Talk shows don't think twice about airing a rival network's news footage or clips from a popular or notorious TV program in order to spark a discussion or anchor a satirical montage. Infotainment shows compile film clips for use in movie star obituaries—not just electronic presskit snippets meant for PR purposes, but clips from older movies that predate EPKs and that might have originally aired on some corporate competitor's channel—and the movie's copyright holders don't object. The shows that feature such clips are routinely repurposed on the parent company's websites, often with ads and sometimes with embedding functions that allow the clip to be reproduced by bloggers, and there are not currently, to the best of my knowledge, any lawsuits seeking to stop the practice. Kings wink at each other. Peasants get the axe.
Kevin B. Lee is not Napster; he's not some guy uploading every frame of every Bette Davis movie for kicks; he's not even Goldentusk. He's a critic and scholar doing work that could be considered, at worst, compelling free ads for essential pop art. YouTube, by reflexively siding with whichever party has more money and power, has renounced its founding spirit.
There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material. And there must be an alternative to unilateral takedowns. The issues aren't just legal, they're practical. History has demonstrated that there's no copyright protection that can't be defeated, no corporate edict that can't be subverted. And given the technological sophistication that permits digital watermarking, there ought to be a way to make sampling of any sort, authorized or not, scaled to suit the filmmakers' means, profitable for the rights holders, and as fully automated as the copyright-infringement-scouring that's currently happening all over the Internet.
Whatever the solutions, they should be something other than one-size-fits-all. Digital watermarking abusers are engaged in an unwinnable war—one that, in its present state, will only produce collateral damage and make them increasingly unsympathetic, and therefore more likely to be demonized and resisted. The entertainment industry's unwillingness to recognize the plain fact that people have complex, idiosyncratic and yes, possessive relationships to songs, films and TV shows—relationships that are qualitatively different from their relationships to cars, hats, shoes and beer—contributes to a culture of calcified mutual resentment, and a public mindset (manifested most vividly in generations that cannot remember life before the Internet) that sees big entertainment companies as lead-footed dopes—Elmer Fudd blasting every rabbit hole in sight hoping to hit Bugs Bunny.
The situation as it stands is immoral, untenable and, I believe, a violation of fundamental rights. Almost nobody taking part in the early phases of digital media has the money to fight the Googles and Viacoms of the world, and of course that's what the takedown gremlins are counting on; injustice not resisted eventually becomes tradition. I fervently hope some brave, knowledgeable lawyer will see that there's more at stake here than the ethics of ripping and posting scenes from movies, and make a test case of Kevin's unconscionable treatment. The circumstances may seem mundane, but the implications are grim as can be. When individuals and governments permit corporations to dictate the terms by which their culture may be examined, the First Amendment becomes just another pile of words.
A Brooklyn-based film editor and a former critic for The New York Times, The Star-Ledger, and New York Press, Matt Zoller Seitz is the editor emeritus of The House Next Door. For now, at least, he posts videos on YouTube under the name InsomniacDad.