Fair Use at Diversifying Participation

The Diversifying Participation [2] conference held at the University of California, San Diego on Feb. 18-20 and headed by USC's Henry Jenkins [3], marked the consolidation of a research field, digital learning. Funded by the John D. and Catherine T. MacArthur Foundation [4], and showcasing many MacArthur-funded projects, the conference featured creative overlaps between educators, youth media practitioners, digital designers, gamers, nonprofit institutions and funders. The overcrowded space-this was one hot ticket-was crammed with panels, so I can't claim to have even sampled the best, but there was a lot to learn.

Our panel on fair use for digital education was alive with questions about negotiating students' desires to sample the world of copyrighted expression for their remixes and commentaries. Sasha Constanza-Chock [5] (who had some of the best tweets of the conference and whose own work with disenfranchised communities at USC is fascinating) challenged the panel, saying he encouraged his students to learn BitTorrent, copy the culture at will, and express their civil disobedience against copyright law. I supported the notion of teaching the full range of approaches to copyright policy, but noted that the polarized extremes of copyright protectionism and copyright rejectionism have for too long dominated debate. What we need now is to explore the vast middle of experience and expression between those extremes, and make that middle more habitable. Self-criminalizing gives away too much to copyright protectionists, who label all users of their material as "pirates." Renee Hobbs [6], one of the co-authors of the Code of Best Practices in Fair Use for Media Literacy Education [7], pointed out that many teachers dearly want to conduct their teaching lawfully, and had hobbled their teaching until they created their own Code. (FYI-the creation of the Code was funded by MacArthur.) Jason Schultz of UC Berkeley's legal clinic [8] encouraged people to practice fair use in order to expand the range of what is possible under copyright, since using fair use makes it more useable for others. And if you actually ever need a lawyer, Jason is eager to help, and has friends.

At a vidding panel, I was delighted to hear Francesca Coppa [9] (via Skype) talk about the rationale for why employing entire cuts of songs is a transformative use in this subculture. (Vidding [10] is a female subcultural practice of remixing popular culture to make comments, positive or critical, on gender and equality.) While downloading music for free just to enjoy it is tough to argue for as a fair use, repurposing the music-and having a good argument for why that repurposing is different and why it is normal in a community of practice-makes a fair use claim much easier.

It was fascinating to see up close how the staff and reporters of Youth Radio [11] negotiate their roles as their work floats into a "digital afterlife." Elizabeth Soep and her team walked us through the challenges of participatory journalism. When the audience turns into a co-author, the original author has to play an active role in reclaiming a chosen narrative. At the same time, the digital afterlife opens up new opportunities. A station refused to air a Youth Radio story about a young rapper's brush with rumors of his death, because the programmer feared members would find his music offensive. But the story had a vigorous podcast life on NPR's site.

Other research presentations did not surprise: inequalities in the real world are echoed and reinforced online; as online environments monetize, class structures develop; students who are given a lot of attention and resources (in this case, to make digital media) develop both technical and expressive skills. Many people, including the young and the digital, like posting their work online a lot more than receiving feedback-especially negative feedback. The gap between mobile and stationary computing is closing, possibly not in a good way.

This is the first of what the funder projects as an annual event. It will be crowded again next year.