H3H3, Copyright Reform and You(Tube)

The History of Copyright

Everyone has heard of copyright. That little © symbol sits at the bottom of nearly every website, it’s plastered on books, films and pretty much every piece of creativity you’ll pick up. While everyone has heard of it and has seen it, most people don’t know what it’s for outside of the idea of “don’t steal for fear of lawsuit”. With the current h3h3 productions fiasco looming on the minds of content creators on YouTube, I think it’s a good time to explain the history of copyright and how it is in need of drastic reform.

(This is a long read, I encourage you to read it all.)

The Beginning

A long time ago, in around 3400 BC mankind began doing this little thing called writing. It evolved from basic symbology and by 2600 BC two ancient civilizations (the Sumerians and ancient Egyptians) had created structural writing systems. Writing was valuable because it allowed for information to be documented and passed along. Sharing information suddenly advanced the human race: governments grew, history is recorded, and most importantly, future generations could learn from their ancestors.

The early days of structured writing was a laborious task. Earliest on, it involved etching into stone tablets or wet clay. Egyptians eventually moved onto using papyrus scrolls, which sped up the process…slightly. Their papyrus method made writing a much more appealing process, so it spread. The Ancient Greeks would end up using papyrus and wax tablets (which means the Romans would as well, since they basically were the original cultural appropriators.) The Chinese would use bamboo and wood and in around 2200 BC, they invented this awesome thing called ink. Eventually the Chinese would perfect their ink recipe. They wrote a lot.

So, everyone’s writing and having a great time recording history, the crazy antics of the Gods and government affairs (or whatever else people had to say back then) so they decided:

“Hey, I’d like to make this writing easier to read”.

And so they invented books.

“These are cool, books are cool, we should make copies of books so that other people can see our awesome ideas and know we said it first and be super impressed”

And then they started making copies.

Making copies wasn’t easy. Making copies of books back then involved an awesome process called Get Someone to Rewrite This Book Word For Word. The people who wrote these copies were called ‘scribes’. Scribes would spend a lot of time thinking, “This sucks.” A scribe could only copy one book at a time, because they were human and that’s the limitation.

Anyone have Brad Neely’s number?

The Greeks would throw a bunch of scribes in a room called a scriptorium and their job would consist of making copies. These copies are called manuscripts because the script would be manually written.

The Romans were impatient and wanted more than one copy at a time.

“We’d like up to 30 copies, please”.

So, they invented Gawker. They would force a room of enslaved scribes to write while a man stood and dictated a manuscript at them. These scribes spent a lot of time thinking: “This really sucks.” The Roman process would unsurprisingly result in many clerical errors. Other civilizations saw this process and thought, “That’s inefficient, we’ll try it!”

The Chinese thought that was dumb, so a short few thousand years after inventing ink, they decided to stop writing so damn much.

“Holy shit”, they said. “We are tired of rewriting the same stuff, since we’ve had ink for thousands of years and we’ve seen how it adheres to wood and bamboo, maybe we can press two pieces of wood together and make a copy.” This happened around the 500AD and woodblock prints were most likely the first mass production method, but it didn’t spread. Woodblocks were used for illustrations in Europe, but not much else.

For whatever reason, It wouldn’t be until the 1400’s when movable type and paper was invented, that books began actually being mass produced in Europe.

Gutenberg Bible: No one’s sure why movable type wasn’t invented earlier, but whatever.

The Root of Copyright Disputes

THE ORIGINAL COPYRIGHT DISPUTE

Technically, the first copyright dispute occurred in 560 AD when a couple of Saints got into a dispute that rivals the best of shōnen anime plots. (Feel free to make a movie out of this story Hollywood, and then copyright the characters).

Finnian of Movilla wasn’t originally ‘of Movilla’. He might have been born in Ulster, though who really knows. He studied around for a while and ended up in Rome. When he came back to Ireland, he brought a copy of the Vulgate, which is a pretty big deal considering there weren’t a lot of books. He started a school at Loch Cuan, specifically by an old pagan site of worship called Maigh Bhile (or Movilla). He had many students, but his best student was named Columba.

One day Columba decided he was going to copy one of Finnian’s book of psalms (or psalter). Who knows how long this would have taken, but when Finnian found out, he was pissed. Columba copied the manuscript to keep for himself, but that didn’t matter to Finnian. Finnian told Columba to return his copy, but Columba refused. So Finnian did what everyone does today — disputed it in front of the King. Does the copy belong to Columba, since he manually copied it — or does it belong to Finnian since the original book was his? King Diarmait mac Cerbaill favored on the side of Finnian. His famous reasoning was:

To every cow belongs her calf, therefore to every book belongs its copy.

Books can’t reproduce, but his verdict was passed. Columba didn’t like this and did the obvious thing; fostered a rebelled against the king. He gathered the clans of Uí Néil and went to war. The Battle of Cúl Dreimhne (The Battle of the Book) left 3,000 people dead and was the beginning of the end of Diarmait’s reign.

Copyright, Censorship and Rights

Let’s return to movable type. Most books being published before the advent of movable type were religious texts and maybe a few old epics. No one worried much about these books being copied because it took such a long time to copy a manuscript that no one wanted to do it. Once the printing press became widespread, the amount of books in existence jumped from a few thousand to something like 10 million. This allowed for more than just the Bible to be copied, so writers had an opportunity to be writers and publish stories.

By the 15th century, printing had become a lucrative business and printers didn’t want to let other printers publish copies of books that they published first. The Worshipful Company of Stationers or Stationers’ Company started back in 1403 as a manuscript vendor and the mid-1500’s transitioned to a printing company. They created a charter that basically said “If you publish through us, no one else can publish your book and we’ll guarantee it.” It also extended to a pact between printers. “If you print a book, we won’t and vice versa”. Of course, they had no way to enforce this and became afraid new printers would publish works they had guaranteed would not be reproduced. In order to put a stop to this, they hit up the king and asked for a monopoly.

The king, being the king, saw this as a great opportunity and granted them this right, with the condition that the king could censor books and texts from being printed if he didn’t agree with their content.

This was the first right of copy and was granted because the printers demanded power and the king wanted the power to censor. This gave printers power but it made authors furious.

The Author Should Have Power

Over the next century, Parliament would abolish monopolies, save for the licensing of printed works (Licensing of the Press Act 1662).

While it hasn’t been proven, it seems that everyone who wrote during this time period was named John. In a series of treatises, three John’s fought the ruling.

In 1577, John Wolfe said he should be able to print whatever he wanted. John Milton argued in 1644 against printing licenses and John Locke wrote to Parliament in 1692. Essentially their argument was: Without the writers, the printers would have no business and so it only makes sense that the right to copy a work should be dictated by the author of said work. As the content comes from the authors, they should be able to choose the printer to distribute the work and make a living from it.

In 1709, the Statute of Anne was passed. This is the first official declaration of copyright and is also known as the Copyright Act of 1709. The Statute of Anne would become the go-to document for future Copyright Law systems over the next several centuries.

The Statute of Anne had many different sections, but basically it granted an author a 14 year copyright (the ability to license, choose distribution and own their work exclusively) with the opportunity to renew their copyright for an additional 14 years, when the first term lapsed. After the copyright terms were complete, the works would open to the public domain and anyone could print, publish or use the work how they pleased.

As time went on, many revisions and amendments were made to the act. More media became covered by copyright, including plays and music. By 1842, extensions of copyright were pushed until 7 years after an author’s death and this is where things become a problem.

The United States and the Copyright Act of 1790

The first federal copyright law passed in the newly formed United States of America was the Copyright Act of 1790. The provisions were nearly identical to the Statute of Anne, and only covered written works, patents and maps.

Thomas Jefferson and James Madison worked together in finding a medium that would allow authors and inventors to make a living, while also allowing for future generations to borrow and build upon works. In Article 1, Section 8 of the Constitution it reads:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Madison believed that holding exclusive rights to a work was a slippery slope and foresaw several problems with it. He believed that mankind benefited from building upon previous works. While a maximum term of 28 years was longer than he liked, it was short enough to allow others to build upon a work published during their lifetime. This term limit also incentivized an author to continue creating new works (instead of becoming complacent).

We’re far removed from this now.

Walt Disney and the Mickey Mouse Act

“This isn’t copyright infrigement Robek, it’s Cosplay?” by @armorland

We’ll skip ahead a bit. Over the next few hundred years, copyright laws would see massive extensions and the addition of more media covered by copyright. With the onset of massive media conglomerates and publishers, artists and authors were given “money” for selling the rights to their creations to parent companies. Creators would usually lose all rights to their creations after this. Why pass it up though? If you sell the rights, you can be rich!

The extensions to copyright terms became insane. Families of creators weren’t content not making money from their “rightful” inheritance. The American capacity for creativity and innovation became near impossible and by 1976, the Copyright Act of 1976 would dictate that copyright would last for the life of the author plus 50 years (or 75 years for a work of corporate authorship).

In 1928, a man named Walt Disney created a cartoon called Steamboat Willie. The cartoon featured an animated mouse called Mickey. Mickey Mouse was created because Disney had lost the rights to his original character, Oswald the Lucky Rabbit, to Universal Studios. With a little bit of American intuition and willpower, Disney founded Disney Studios and with the mouse at the helm, built a powerhouse of an entertainment company. No one believed cartoons would have the power to make massive bank, but Disney persevered.

In early 1934, Disney announced that he was producing a feature length animated film. People thought this was crazy and his peers begged him to abandon the idea. He insisted it would be great and set to work. He based the film’s story on a classic Grimm fairytale and named it “Snow White and the Seven Dwarfs”. Disney took inspiration from the popular films at the time and upon its release, “Snow White and the Seven Dwarfs” would become an instant hit. It outperformed every other feature that year and set Walt Disney’s little company to become one of the leading forces in Hollywood.

Due to the success of “Snow White”, Disney’s studio would continue making adaptations of public domain works. Despite his flaws, Disney was an innovator. He made animation a viable medium for storytelling and built a brand that would become known across the world. Besides building theme parks, networks and brand experiences, Disney had a passion for pushing humanity towards greatness. He was one of the first futurologists and truly wanted to see mankind live in self-sustaining communities and build great civilizations in the stars. At the center of his conceptual Florida theme-park, Disney dreamed up EPCOT:

an experimental prototype community of tomorrow that will take its cue from the new ideas and new technologies that are now emerging from the creative centers of American industry. It will be a community of tomorrow that will never be completed, but will always be introducing and testing and demonstrating new materials and systems. And EPCOT will always be a showcase to the world for the ingenuity and imagination of American free enterprise

Disney didn’t live to see it completed. He died in 1966 from lung cancer. His company couldn’t have been more thrilled, because they had a dream too. A dream to cash in and stop paying for pet projects, opting instead to monopolize and make massive amounts of money from Disney’s body of works. They neutered EPCOT and laughed all the way to the bank.

That wasn’t enough, however. You see, in 1990, the Disney Company was faced with a problem. Walt had created Mickey Mouse in 1928. With the current copyright laws, it meant that Mickey Mouse would become part of the public domain by 1998 and that meant their little cashcow and mascot could be used by everyone without royalties being paid or lawsuits being lawful. They lobbied for 8 years and in 1998 the Copyright Term Extension Act was passed.

The act extended the copyright to the author’s life + 70 years (corporate authorship of 120 years). This would keep Mickey safe from the evil public for another 20 years. The very thing that made Disney’s studio successful, was effectively stolen from everyone else. Any work created in the past century will now most likely never see the public domain. However, it won’t end there. The Mouse will be free come 2018, so we’ll probably see Disney lobby and Congress extend copyright terms to infinity, soon enough.

And so dies innovation and creativity

Who does copyright benefit? Is it meant to protect the author? Is it meant to keep a creator fed and inspired to create more? Is it meant to encourage the public to build and create and critique and better humanity?

Or is it meant to benefit those with the deepest pockets?

Copyright no longer benefits the creators, it simply benefits parent companies. Richard Stallman, the eccentric philosopher and founder of the free software movement (also crazy according to the media, but their word is worth nothing), says in his lecture “Copyright and Community” that he spoke to several popular authors on the matter of copyright term lengths. I don’t want to ruin the entirety of the anecdote, but essentially, a majority of these authors wish for terms to be 5 years or less. Stallman proposes a 10 year term limit to copyright.

Most authors see a massive diminishing return on their work after the first 3 years. Those who don’t sell the rights to their creations, consistently create new work because the drop-off for profits are so high anyways.

So if copyright is meant to benefit creators, what’s wrong with allowing the public to remix and re-appropriate works after a shorter term? Some of the most fun uses of popular culture stories, be it Doctor Who, Lego, Disney use public domain stories to allow for a new light to be shed on a work. I doubt the story of Robin Hood would be so popular and timeless today if the families of ye olde ballad writers still held copyrights.

(My only proposed exception to term shortening is Tolkien. Poor Christopher Tolkien has fought a very difficult battle with the companies who managed to secure rights to his father’s works before J.R.R. Tolkien died. Without knowing what these companies would do, Tolkien sold the film rights before knowing how popular Lord of the Rings would become. Christopher Tolkien has been battling these companies for the past 50 years and has watched them “eviscerate” the works he is so frantically trying to preserve and share with the world. Perhaps the bigger problem here is when creators sell their rights away.)

Most companies do not have the interest of the creator at heart. If you are a creator, be wary and mindful of who you sell out to. Self-publishing is difficult, maintaining a YouTube channel is difficult. Don’t despair though. Research, forming co-ops and remaining true to your standards can save your properties and allow you to actually make money. Plus, you’ll have the added benefit of the public’s support. The content consumers are not as blind as the media would have you believe, dear creator.

Tip 1: Don’t sell your children. This means, if you love a creation, keep it and build it. Many artists, authors and creators sell works for commercial use but keep their passion projects.

Joke: The music industry. No one makes money from albums but the labels.

Fair Use, YouTube and @h3h3productions

LET’S HAVE A LAWSUIT!

Unique to American Copyright Law is the exclusion for Fair Use.

Typically, you can be sued to shit and back if you dare infringe upon a copyright in the states (or fail to ask for permission). However, there are many viable industries, most notably, comedians, journalists, and critics, that require the use of copyrighted material to express an opinion or a criticism about a work. Because of the intended use of this copyrighted media is to inform and evaluate (through parody, critique, reporting, commentary, education) and potentially push mankind’s awareness of itself, it is deemed “Fair” and “Fair Use”. A natural right. A safeguard for the public to speak and learn without going to prison.

Fair use is difficult to explain, so read the wikipedia article or watch this video if my short summary doesn’t give you enough insight.

Incredibly, Fair Use still exists in the United States. It was meant to balance out the power of the copyright and surprisingly it hasn’t been beaten by corporate interests (yet).

Ethan & Hila Klein have recently been sued over one their videos. The claim is that they aren’t legally following the requirements for Fair Use, and while untrue, will have to go to court to fight it. It’s easy to dismiss events like these as petty and irrelevant to your day-to-day life, but it is actually very important. The outcome of legal battles like this one is expansive. They go all the way from: “Can I reference your film in my YouTube review” to “Let’s Play: Overwatch” to “Can I share funny gifs of my favorite shows on Tumblr and Twitter without being sued”. If the big companies could have their way, you’d be paying royalties for every single thing you do online — that’s why those companies are pushing for closed networks and worldwide copyright measures. The people and web users are the evil ones, not the media companies.

The law hasn’t been clear as to what exactly constitutes fair use. Fighting in court is expensive and these cases are often just settled. It’s important to have a written set of rules pertaining to what exactly FAIR USE dictates, because as copyright become a larger and more venomous monster — the platforms for which individuals can share insight or even new ideas grows smaller and free thought diminishes. A precedent must be set. This is why support for h3h3productions has been so high. It’s important to YouTubers and content creators online.

YouTube’s problems don’t lie with Fair Use alone. Google, despite an effort to become more evil than “Don’t Be Evil”, has an honest challenge curating YouTube. Unlike Facebook, Google’s business model requires the internet to be open. An open web allows for open search results and that’s still the bread and butter of Google’s income. YouTube works the same way, new content and fresh creators attracts more business to the platform. Copyright law is a thorn in YouTube’s side as well as the creators, but legally there’s a difficult set of rules Google is forced to adhere to.

Food for Thought

Fair Use is a great battle to fight for. Go, be heroes of Fair Use, and help h3h3productions win their suit. We desperately need this legal precedent for the future of online content creators, let’s plays, critiques and comedy.

After winning, take a well-deserved rest. When you are rested, muster your strength and sharpen your steel — because in order for new ideas and innovators to flourish, we must begin the battle against congress, lobbyists and lawyers. We must fight the final raid boss, Copyright Law, and reform it so that it is a champion of the people and of creators — instead of the enemy.

Until that time, we will be biding our time, mulling over solutions. Come find us when you need our help. We’ll be here…should you need us.

@robek.world is part of the problem