Welcome back to Why & # 39; d You Push That Button! Season 2 starts today, which could be a funny little surprise for you, because honestly, we have not done a great job remembering to talk about it on Twitter!
Our first episode is about the memes and the law, which sounds both boring and frightening, and neither of them. First, we talked to Sara Reinis of Vox Media, who told us a disturbing story about her first viral tweet. In short: his life turned a bit upside down because he made a meme with a picture of some birds, and did not realize that the birds were someone's family. Fair enough, Sara, but maybe all our listeners learn from your mistakes!
Our first episode is about memes and the law, which sounds both boring and frightening, and has no
Then we talk to Drew Scanlon, better known as the "blinking white man meme". He told us how his life has changed since his eyelids became the most famous on the Internet. Honestly, it does not sound so bad! But I would probably have less patience with my friends and acquaintances than Drew. He says he does not even bother him when he is presented to people as "the guy who blinks."
Finally, we talk to Tim Hwang about all the legal issues that buzz around these stories. He is a lawyer, founder of the ROFLCon memes convention and director of the Ethics and Governance initiative of Harvard AI and MIT. You can listen to and read the transcript below, or find us in any other place where you can find podcasts, including Apple Podcasts, Spotify, Google Play Music and our RSS feed. And get stuck in season 1 if you arrive late to the party.
Kaitlyn Tiffany: So, to be honest, when we decided to do this episode we had no idea how copyright becomes memes. It was a kind of idle question like, is it? We do not even know. If you could explain how he does it and in what way is not a little, that would be very useful for our audience and for us.
Ashley Carman: If you find a photo on the Internet, can you use it?
Tim Hwang: Right, so it's a big open question and it's been a big open question on the Internet for some time. Therefore, I think the place to start with this is from the basics, which is: what is the internet and what does it do in culture? I think a way of thinking about what social networks are and what Internet culture is is that it is a great … in a way it is a huge photocopier. You can take a picture, you can do something, you can share it again. It's a kind of culture without permission, right? If you see interesting content online, there is nothing that prevents you from taking it and using it. And this has been, on the one hand, I think, one of the things that have made the internet culture so vibrant and so active and so good, I suppose, in producing things that are simply incredibly funny, or certainly shocking in the least. , and that has been the case on the Internet for a long time. It was already old when we were running ROFLCon in 2008, and we've seen another decade since the conference started.
I think that, on the one hand, a way of thinking about all this is that the internet has enabled this kind of amazing culture in which it is possible to take and iterate on something, and that process happens very quickly. I think one of the most interesting things about the Internet is how people can build one over the other and constantly invent jokes within jokes within jokes, and at a certain point, it's almost impossible to understand unless you've been part of this exchange of jokes and internal references. And the law has played a really interesting role in all this. I think that somehow the copyright law was not ready for much of what the internet brought to the table. Without doubt, we saw it initially in the case of things like music, but more and more everything is a kind of meme-ified, which is one of the things that makes it really complicated.
Now, according to the copyright law, it is true, you have a kind of legal right to challenge someone. Certainly, under the DMCA, you have the right to remove that content from a platform if it violates your copyright. And the copyright is very broad from a legal perspective. The moment I create something, I have copyright. I have rights over that content, and really everything I believe, if taken by another person without my permission and copied and shared, theoretically I have the right under the law to remove, control, protect and restrict that content.
Now, the complicated thing is that copyright has existed in limbo because, at least according to the laws of the United States, we have what is known as legitimate use, right? According to the law, basically, the idea is for culture to evolve because people can take culture and use it for their own purposes, and the fair use doctrine basically says that under a specific set of circumstances you can take that content and use it as your own . And those two things have always been in tension among them on the internet.
Then, on the one hand, people say, "Well, this is under my rights under the copyright system, and I should be able to tear down things." On the other hand, it's a battle with legitimate use, which may include things like, "Oh, well, I'm using this for parody purposes," or "I'm changing it in a way that allows me to use it without you being able to control it." It's a really blurry area of law. , which is one of the reasons why memes have proven to be so complicated, especially when you think about how … in 2008, I think it was like, "Oh, yes, the Lolcats are one thing", but now, many and many things things are like a meme in the way they are designed.
Kaitlyn: So, one case I was reading about that I thought was very interesting was the Socially Awkward Penguin, which was considered property of National Geographic. Basically Getty Images chased him to make people take him down, which is something that makes sense to me, but it seems it probably would not work in the other direction, like a great company that causes random people to defeat their memes. A random person probably can not make a mark eliminate a reappropriation of his meme. I guess that's how the legal system works.
I mean, totally. So, yes, you're pointing out a totally true thing, that … until now we've only been talking about what the law is, right? What's in the books? And there is a very strong argument for fair use, and particularly memes are what they call a "transformative use" under the law, something that uses this content in a way so different from the original that we basically do not think it's the same thing .
Kaitlyn: like art. It's art, right?
Yes, totally, correct. And there are many examples, and many of the lawsuits that have existed in the past are essentially directed to this battle: "I took his image and I did something to him, and now it is my art, and then you can". "They pay me for that" or "You can not control what I do with that". And that's a big problem in legitimate use, but one of the things you're pointing out is this really complicated relationship, particularly as the Internet has evolved, around who can really get the benefit of the law.
And a piece you're referring to is really good, it's back when we were running ROFLCon from 2008 to 2012, the notion of marketing agencies that made "viral videos" in quotes was like … that was still something new that They are trying to decipher, but now companies really understand that, "Look, if there is a meme, we can build our own commercial version and ride that wave, and it's good for marketing purposes." And I think that introduces a question really interesting in which I think that in the first days of the web we said: "Fair use is amazing", because basically it allows people to take the job, reiterate it and turn it into something incredible, and even take the work of corporations to do that.
But now we see that the opposite happens, where you see that the content becomes something online organically, and then the companies that try to get on that, and then there is a really interesting question: well, when that happens, we feel different about how justice is or if it is or not the copyright ecosystem in which we want to live.
Kaitlyn: I do not know if you're familiar with the meme called White Guy Blinking.
Uh-huh, yes, I've seen that guy.
Kaitlyn: Yes, I think he's a good sportsman about it. I do not think I really bothered him, but I'm curious if I really bothered him, would he have been able to do something about it?
Well well. I mean, that's something interesting about some of these things is that … Copyright is rare because it complicates what is sometimes personal with what is commercial. So, sometimes, in the case of fair use, it's something like, "Oh, I had this content, and this meme is so important that if I could license it and put on shirts, I could earn a million dollars," and that's a certain type of use of copyright law to try to eliminate things.
But I think there is also another use, which is as for personal reasons, we are using copyright to remove content. And, again, I think that this type of adjustment is not so perfect with the copyright law. One of the really interesting things that we have seen with the copyright law in recent years is, for example, that there are problems of online doxxing or online harassment or people launching revenge pornography online. Under US law, there are not really many privacy laws that you can use to try to protect yourself against that. And, in fact, many people end up using the copyright law because they say: "You have basically taken my personal content, and should have the ability to eliminate it or prevent its use." And so, copyright is rare in that respect, which is not only about money, but also about this type of situations in which people feel very strongly what happens with something they created.
Ashley: Do you feel that the legal system is catching up or do you feel that the laws are really good at handling the problems of the meme?
I still think there is a lot to do to catch up. I mean, I think the fair use structure is really good, but it's clear that in some cases we're trying to struggle to see how this framework really fits the memes, and it gets more and more complicated as more content gets It behaves like memes online and, in fact, as it changes the entire Internet market and the market around the Internet culture. I think we are in a very different world from what we were 10 years ago, where we could say: "Hey, is not it really great that people are only creating a culture for themselves?" And I think that's still important to protect, but as I was saying, I suddenly think it's parallel to the big companies and people who use copyright for ways that can suppress freedom of expression, and also to protect themselves. Somehow, many things are all tangled up in copyright right now, which may not be so good at doing anything.
Kaitlyn: Something that is wild that I did not know until we talked about this podcast is that Know Your Meme has a complete section of its website that is just a record of things that had to be removed due to copyright. That's crazy! It is influencing the more or less definitive history of Internet culture and had to eliminate something like 40 entries. That is wild to me.
Yes, I think it is correct. Again, this is a bit about why copyright is so confusing because it protects so many different interests in a certain sense. It's like: "Okay, there's a really important need to preserve the history of web culture." I believe it totally in a really serious way. But particularly under the DMCA – the Digital Millennium Copyright Act, which regulates how many platforms like Google or YouTube or whatever it has to do with copyright – the default is to tear down things, right? And this has certainly been abused in a lot of cases where basically people said, "Well, basically I want to suppress information, and we're going to use copyright as a tool to do that." I think it's, again, another really complicated situation
Kaitlyn: Yes. Man, this really has opened a can of worms in my brain.
Yes, I'm sorry about that
Kaitlyn: Now I'm thinking about the definition that people have of what a meme is sometimes literally like a subtitle contest. They're like, "I took this picture and I wrote something under it."
Ashley: Yes, we also talk about that, because it's very difficult to define. For me, it's like … Literally, I think of a meme as just an image on the Internet with which you put a funny legend. That's. That's how I think of a meme.
Kaitlyn: Many types of memes are art, I think, but is that art?
Yes, some people would say yes, because sometimes those subtitles are surprising and completely recontextualize what it is about. But, yes, I agree. I mean, it's like … yes, what is a meme? And I also think that there is a real question about … So, one of the important questions is … clearly, it is a non-profit use, but the question is: do the memes affect the market of the original image? I do not know. Maybe not. No one is selling less photos of a cat photo because someone added a legend or something. And then, again, I think there are many interesting extreme cases to discuss here. I think that is one of the reasons why lawyers like it so much.
Ashley: And it was not this kind of big … I do not remember if this was last year or a couple of years ago, but when there was all this talk about Fat Jewish and Jerry Fuck, basically the meme providers got annoyed at these healers of content to post memes.
Kaitlyn: It's such a generous term for people who destroy memes and put them on Instagram.
Ashley: Yes, was that part of that debate not also like merit? They were not giving credit, and then they gave credit, and then everything was solved through credit? Just giving credit seemed to solve some problems.
Totally true. And once again, I think we are talking about the distinction, once again, between what is formally expected according to the law, as if we went to court and fought for it, about what we would discuss, versus the kind of this strange universe that We live on the Internet, which is something like in your own Internet world, because there are many practical aspects about finding someone, demanding them, fighting the fair use case. In practice, it does not happen too much. And then I think I agree with you. One of the really interesting things we have seen is that there are certain rules that have evolved online that basically help people navigate or maybe help determine when things are right or not. But those are not written. They are totally informal rules that govern whether or not someone will bring the law to fight against this.
And credit, I think, is a really powerful way of thinking about some of these things, where, especially in those cases where someone simply wants to be identified with something great they did, sometimes credit is all they need, just to say "Hey, this is the person who invented this thing" or "Here is the person who took that image". But part of what makes it complicated is that the expectations in different parts of the Internet are different, and it's really hard to tell from a picture of a penguin if the creator of that penguin would be really upset if you made him a legend or something.
Ashley: I still think of Pepe, because he has been so … the creator has been very eloquent about it, because obviously, Pepe has now become this terrible monster. And I'm sure at first I was perhaps glad that it was a meme, and then, once the Nazis took over, he said, "Oh, God." Now he has to start doing, I suppose, take down.
Kaitlyn: Well, when the Nazis took over for the first time from Pepe, he resigned himself to it. He was like, "He'll be back," and then he got to a point where he was like, "It does not matter."
Ashley: And then it got worse. Oh my God.
So this was the original idea behind a project that was much more around the web, maybe a decade ago, Creative Commons, which is the idea that people could only point out when they agreed to someone using their things . But that really has not taken root in a really big way, and so, again, we're still in this limbo. And there are also many extreme cases, right? Because it would be a bit weird, basically … You go to a comic book in the future and you think: "Here is a long list of things that I think are good and it's not good to use my content", and I think we can see more of that in the future as people try to navigate this really complicated thing.
Then imagine the creator of Pepe. At what point do we want him to be able to use his copyrights? At what point do we want him to be unable to use his copyright? It depends a lot on who is using it and how you feel about it. Do you think of Pepe as something that is going to be a brand for your business, or is it going to be … or is it something like you do not want to associate with it and be associated with the Nazis, for that matter?
But, yes, I think part of the problem here is that we do not really have a good way of pointing out what people expect when you use their content.
Ashley: And the only way the law would change is for some of these cases to go to a big trial? Is this how it would happen?
Even before you go to trial, if you're going to bring the lawyers about this, there are a lot of things that come and go and they say, "Well, we could discuss this," "Well, we could argue that," and then I think there are many positions on the way to a judicial case. But it is, and I think it is a correct criticism of the copyright system, it tends to favor people, like other parts of the legal system, who have money to spend on this type of fights. And that makes it particularly complicated in the event that we were talking a little bit earlier, that he is a small creator who gets his things in a much bigger company, and that it feels like a situation where we really want copyright to be applied , but it becomes really difficult only in the practical aspects of enforcing that copyright.