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Your Intermediary Is Your Destiny

According to Lohmann, anyone involved in the use of content to create content needs to view the legal departments of online hosting platforms as bouncers rather than doormen.    Bouncers provide participants access to a space based on a mutual understanding of good conduct; they essentially modify and regulate behavior.  Doormen act more like gatekeepers by restricting access to a space based on a rigid set of rules.  Benson’s metaphor is actually quite apropos in helping us comprehend the user experience on sites similar to YouTube.  (You can get in and have a good time, just don’t act crazy). Like bouncers, YouTube only intercedes when someone complains. The DMCA “safe harbors” act allows YouTube to post content without the strict liability that offline production companies face.   These intermediaries obey a “notice and takedown” system that affords owners of original material the right to monitor the use of their content.

These different rules for online intermediaries have engendered a new set of opportunities for users to find and build an online audience. As long as creators do not make intermediaries financially liable for their content, they are free to create for targeted audiences. The author still encourages creators of online content to apprise themselves of the legalities in using uncleared copyrighted material by considering whether the use might be excused under exception and finding out how its owner has dealt with the use of copyright material in the past.

Lohmann’s article helps to alleviate the angst that users may feel about remixing copyrighted material.  I however wonder if the idea of working with the system because we can’t beat the system undergirds his admonitions.


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  1. Jacob Lederman says

    I had a couple questions about this article… It wasn’t totally clear to me just how file/video sharing sites differ from traditional sites of copyright infringement in terms of penalties. The author makes clear that the approach is more bouncer than doorman but does that mean that the consequences are different? In other words, after you are booted, do you simply go on your way? Have amateurs posting non-commercial videos on Youtube been prosecuted for copyright infringement? What about for commercial ventures? More broadly, the sheer scale of copyrighted cultural products on Youtube suggests to me that there is a slightly different regime of copyright law operating here.

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