Elmo Discard

An image of a singer at a microphone stand, backgrounded by spotlights at a concert.

Elmo Keep is a respected writer, journalist, producer and blogger for some reason.

On the second of January, 2010, Elmo sent me a message on Twitter asking if I had time to discuss the ALP's Internet censorship policy as backgrounding for an episode of the ABC's Hungry Beast.  Hungry Beast was never hard-hitting journalism, and I shouldn't really have been startled when I subsequently spent a significant amount of time explaining a fairly complicated issue to her and she subsequently shanked it by completely misunderstanding Australia's classification system and then giving the responsible minister - Stephen Conroy - the open floor on the final show to mischaracterise the policy at will.  I was surprised though, and I made a mental note in the fallout from that episode (and the subsequent thrust and parry through my then writing and Hungry Beast's blog-along) that I'd make very careful moves if I saw anyone involved in that fracas tackling online issues again.

Fastforward nearly four years, and Keep wrote some unmitigated junk about copyright and online.  Effectively the piece is a counter-offensive in a quietly bubbling debate about whether Australia should adopt fair use exemptions under copyright law which would allow much wider re-use of copyrighted material than Australia's current fair dealing exemptions which focus on very specific - mostly educational - use cases.

While I don't make a habit of tearing into fact-bankrupt articles about copyright (literally nobody has that sort of time), there is a clear trend that is being followed here that probably should be picked up and addressed.  Ever since Lily Allen's now removed blog post which characterised artists and creatives on one side of a moral dilemma with the Internet on the other, it's been seemingly easy to pick up this meme and run with it. Keep's piece in Junkee even plays it with a straight bat;

Great fortunes are being made and lost. People on the side of the Internet — including the Australian Digital Alliance — like to call this disruption. People on the other side, like me, call it destruction.

It doesn't get much more blatant, and to be honest much dumber, than that. You're either with us, or you're with the Internet ruining livelihoods.

After the fake dichotomy of Internet people versus bards, Keep gets to the thrust of her argument which is essentially that the current movement towards fair use provisions in copyright law are a bad idea for two reasons; the first is we have fair dealing which is good enough and also that you can always just ask politely for permission to use copyrighted work. I'm not kidding;

You can just, through regular old politeness, ask someone if you can use their work. If it is for non-commercial purposes, because they like the project or you yourself, the creator might agree to a $1 option for the use of their work, and waive their usual fees.

Why didn't we think of that before! (because it's fantasy fiction)

She then goes on to "fact check" a campaign by The Creationistas which is doing the rounds, but her facts... well they aren't. Her rebuttals while run through Sydney law firm Gilbert + Tobin kinda miss a lot of the point.

Creating a search engine in Australia would be impossible. That’s a breach.”

Again, this is clever, but untrue. Google successfully operates in Australia every day, free of any threat of legal action.

That's clever, but untrue. Google may operate successfully in Australia but it's under more-or-less permanent threat of legal action around the world on copyright grounds. Most notoriously, Viacom filed suit against Google's Youtube and since 2007 Google has been defending the one billion-with-a-b claim.  Google has managed to have exemptions granted for its Books project as reported by QUT copyright expert Nic Suzor, but the law relied on for it wouldn't be applicable here because fair dealing is much more narrow (Creationista's point).

So for Halloween, your Mum’ll be pimping you out in Mario Bros outfits. Your mama didn’t get no licence from Nintendo and that breach I’ll be a breach yo!

No, it’s okay. Your mama will only be in breach if she copied Nintendo’s copyrighted drawings or those of a costume supplier.

Actually copyright assertions have been far more trivial than that. Copyright takedown notices issued under the US DMCA have been provided en masse to parents publishing their toddler bopping to a few seconds of a copyrighted song. It's mythology to assert that copyright infringement needs to be substantial or take any particular form.  Maybe they didn't ask nicely if they could re-use.

Even if Keep is right, does "your mama" have a copyright lawyer on retainer to fight and win?

She goes on. Talking about 300 years of copyright law as if it were truthful to assert that it's been stable for three centuries (or that it's relevant given the pace technology has changed in the past three decades). Only a few countries have fair use (despite the fact that countries with infringement rates like China's don't really need them),  moral rights, etc. etc.

To finish off, Keep tries to play the "big corporate" card.

If Australia were to introduce a Fair Use exception to replace Fair Dealing in our copyright laws, the main beneficiaries would not be individual creators anywhere near as much as it would be tech giants like Google and Facebook

It's astonishing how easily copyright apologists can hang it on giants like Google and Facebook, all the while either inadvertently or deliberately advocating positions on behalf of the Motion Picture Association of America and the Recording Industry Association of America.  Arguing against more freely available exemptions to copyright law doesn't champion live pub music, or new Australian poetry, independent journalism or creative Aussie short films; it champions Village Roadshow, Sony BMG, Universal, EMI and Warner Music. Lily Allen wasn't reaching down from the heights she made it to in order to demand fair treatment for the little people, she was protecting the machine that paid her. Elmo Keep isn't striking one for emerging writers, she's landing blows for AFACT.

Australia needs fair exemptions to copyright law, because contrary to what Elmo Keep says, culture is actually free when we want it to be, and free sharing of creative output is important for our society.  

Image Kevin N. Murphy, used under the same Creative Commons license Elmo Keep had the barefaced temerity to utilise for free images on her article too.