Open Video: A Guide for Disorderly Imaginations

I’m in New York this week for the first public conference organized by the Open Video Alliance, which starts in a couple of hours. Participants hail from online video businesses to free software projects, filmmakers to academics.

On first hearing about the phrase ‘open video’, the first thought is naturally the suggestion of a parallel with (free and) open source software. But film of course is different from software, both as a ‘good’ and as an economy. So disentangling the substance of ‘open video’ from the slogan is a first priority. What we know from FLOSS is that success involves a combination of community construction, law, markets and technological standards. While my interests are more related to structures of  collaboration, and the intersection with copyright and the politics of p2p, I’m also interested in the technology and history of cinema. In order to clarify my own views, I’m going to post a series of pieces over the next few days dealing with what I believe ‘open video’ can be.

The Stakes

Despite the technological developments of recent years, media markets remain highly concentrated. The range of views widely broadcast remains narrow; television remains padlocked to the logic of advertising; the number and form of stories told is limited; the division between broadcaster and receiver holds fast.

Open video implies putting in place the scaffolds, and dismantling the obstacles, to enable anyone who chooses to to speak back to that world of images that has fashioned the imagination, desire, sense of self and horizon of possibility.

Overladen as that may sound, few would object to the demand for greater scope for social criticism, self-expression and creative play. But in order to make it a reality, some toes have to be stepped on, and their owners insist that if their techno-economic models are not protected, the it will be then end of audio-visual production because no-one will invest in it. So in addition to persuading our ‘imaginary public’ of the virtues of open video, we must also reassure them that we are not leading them into a cultural desert. That means understanding the types of audiovisual works that have been made historically, and assessing how they can adapt.

So I’ll begin with a crude taxonomy of audio-visual works, then look at the struggle to control the film ecology historically. Next it’ll be time to consider who are the people of ‘online video’, what design factors are important in their communities, and a short section on technical challenges. Thereafter I’ll address sources of finance, before concluding with some legal and political considerations.

Types

Audio-visual production has many different levels, while we refer to all of the following as ‘film’, they require vastly divergent scales of resources. The possibility to create effective substitutes is not equal due to the differing scales of finance and physical infrastructure at the various points in the cycle of film production (here understood to mean the entire process from conception to consumption; the shooting of images will be referred to as origination). Of course all require labour and creativity.

Unlike information goods which can be produced anywhere so long as their inputs exist as information, film is usually site-specific. Excepted from this are recombinant works, and some experimental films. These forms have a well established history, pioneered perhaps by Bruce Conner in the 1950s, making movies without a camera through cut-ups, or Nick Macdonald’s ‘The Liberal War’, a critique of the Vietnam war filmed entirely in his bathroom. In the other cases, origination of the necessary images requires the presence of at least a camera operator.

In general however it is useful to think about the production process as composing two segments: origination and post-origination processing.

Successful collaborative production of information goods relies on the possibility to bring larger tasks into smaller units for later integration (modularity), and also on the ability to harness large numbers of contributions of different sizes (granularity). The aggregation of small bits of labour possible in wikipedia is not possible in film origination; contributors must be present and thus in itself places a bar to participation (cf economics of performance in general). It is also not generally modular, at least that has been the experience so far. Serial novels, with each chapter written by a distinct author, or exquisite corpse type collective images are certainly possible but don’t generate much excitement.

But once the images are produced then contributions at fine levels of granularity become possible, particularly in terms of distribution and marketing.

Hollywood feature: Origination required; high budget; produced for market; privately financed. This is the form whose model is least amenable to reorganization. Blockbusters will however continue to amass significant income in the cinema theatres and through the licensing market to tv, cable etc. They also have merchandizing and other revenues derived from their prominence in the social imagination and the presence of stars. Ultimately these comprise a small section of the number of films produced, even though the dominate most people’s idea of what film is.

Arthouse / Low budget features: Origination required; medium budget; produced via subsidy (europe) or private financing (US)

Television: Origination required; medium budget; privately or internally financed; produced for market

Documentary: Origination required; low-medium budget; equipment commonplace; privately or subsidy financed; produced for market

Experimental film: Some origination required; physical equipment commonplace; low/no budget; endogenous motivation – produced for pleasure/curiosity

Amateur film: Physical equipment required; low/no budget; endogenous motivation – produced for pleasure/curiosity

Recombinant film: No origination required; physical equpment commonplace; low/no budget; endogenous motivation – produced for pleasure/curiosity

Advertisements and music videos: origination required, produced on commission, privately financed

Who are the users of online video and what role can they play within an open audio-visual ecology?
To understand the dynamics behind  participation it’s important to consider both the motivations and, where they exist, the incentives which are in place.

(1) consumers in search of entertainment
(2) producers native to the online environment
(3) Amateurs
(3) Propagandists, proselytizers, whistleblowers, advertizers
(4) those trying to break into the industry mainstream
(5) industry professionals

Consumers form numerically the most important part of the online video population, but consumption a problematic term for cultural goods, as it is always in part productive. Culture is a relational good, and its market is characterized by a surplus of production. Works which succeed must be adopted by users who promote them by talking about them, incentivizing others to experience them as well. Advertising campaigns can be seen as mechanisms whose aim is to kick start this process, but the abiding importance of the relational aspect is witnessed by cultural institutions such as the NY Times bestseller list or the Top 40/100 in music or what have you. In the online environment , this importance is magnified due to the formation of many specialized communities and the possibility to amplify one’s own cultural preferences and recommendations. This productive viral aspect to consumption is essential, because absent the finance needed to generate attention on the scale practiced by the industry, open video producers must fin other means of acquiring visibility. In addition, consumers ultimately finance/provide the revenue stream fora large part of production, be that indirectly as an advertizing market, or directly through payment or donation. Users can also be key distributors as in the case of p2p networks, on which more later.

Those who come to online video production without any offline experience constitute an important part of film output. They are least likely to have incentives in line with industry models or to accept the accompanying norms. Making money is a minor concern, as they are simply taking advantage of what the technology affords them the possibility to do. Socialized in an environment with little interest in copyright rules, they make use of all materials available to them and are the fulcrum of production for what a lawyer would describe as unauthorized derivative works. This output is important as it in turn reshapes the experience of the audiovisual environment, altering again the normative baseline.

Amateurs have widely varied motives but that of commercial success is marginal. Important originators of images, this is a group which have exited sine the earliest days of cinema and whose ranks have expanded with the growing accessibility of cameras and other necessary technologies such as audio recorders, projectors and editing equipment.

As in other areas of online production, the profile of the amateur has significantly blurred. Where previously TV/Motion Picture industry practices kept amateurs at arms length with requirements such as ‘broadcast standard’, the promiscuous online environment enables more mobility for amateur production.

Distinguished from other producers by their motivation set, we could also add another group here, namely those whose production has always been driven by other incentives: proselytizers, educators., whistle-blowers. From the Rodney King camera operator – whose output is driven by being a witness, present at the scene at the right time – to the independent video activist to religious proselytizing, to the incidental producer.

Producers of advertizing, promotional and corporate videos etc have a simple incentive to produce: they are paid to do so and work on commission.

Former and current students of film and video provide a source for original productions. Their motives vary: the desire for visibility (a prerequisite for career advancement); urge for peer review; knowledge that in any case the offline environment provides little in terms of rewards for short and experimental works. Within online communities these individuals bring additional reserves of knowledge and experience and are important for the purpose of developing a ‘community of practice’.

Lastly there are the professionals; whilst sharing some of the motives of the preceding category: inability to secure offline rights sales; curiosity to experiment with the greater distribution range offered by the online environment; desire to build a community around certain subject matter (Outfoxed)

more anon…

No origination required; physical equpment commonplace; low/no budge

Hadopi Rejected by the French Constitutional Council (I)

Good news from France: the Internet and Creation Law, pushed through the legislature by Sarkozy’s UMP, was found unconstitutional on several counts by the France’s Constitutional Council on wednesday. Below I have translated what I think are the most salient sections of the first part, concerning (1) the failure to comply with the presumption of innocence (paragraph 17), (2) reversing the burden of proof ( paragraph 18), and (3) imposition of punishments without involvement of the judiciary (paragraph 16). There are also others dealing with privacy which I will return to later.

What this decision means, is that right to internet access has actually been constitutionalized by the domestic authority. As a consequence, the fate of the campaign for Amendment 138 to the Telecoms Package at European level loses some significance, as it had basically the same aim. The whole purpose of Hadopi has now been negated: a judge will have to be involved where intenet connections are to be cut off. This will slow down the wheels of the administrative machinery, which was designed for the issuance of tens of thousands of warnings on a quasi-automated basis.

Christine Albanel, the Minister in charge of Hadopi has promised to amend the law to return it to constitutionality and has pledged that the first warnings to users will begin by the autumn. But we’ll see about that. This may be just the first sand in the motor of a tricky and unpopular process.

Meanwhile the collective “Pour le Cinema” welcomed the decision, and reaffirmed their commitment as part of the platform “Création Public Internet” (together with la Quadrature du Net, UFC QueChoisir, SAMUP and French branch of the Internet society), to organise a series of public hearings on digitalization and creation in the autumn, with the goal of devising solutions to enable cultural production without reliance upon repressive mechanisms against the public.

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Decision 2009-580 DC, 10 June 2009

12.Taking into account the terms of article 11 of the Declaration of the Rights of Man and Citizens of 1789: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”; that in the current state of communications technology, and with due regard to the generalized development of online communications services, as well as the importance of these services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access such services:

13. Taking into account that property is amongst the human rights enshrined by articles 2 and 17 of the Declaration of 1789; that the aims and conditions for the exercise of the right to property have seen an evolution since 1789 characterized by an extension of their field of application to new domains; that amongst the latter appears the right, for the holders of copyright and neighboring rights, to enjoy their intellectual property rights and to protect them in a framework defined by the law and by France’s international commitments; that the fight against methods of infringement which are developing on the internet corresponds to the objective of safeguarding intellectual property;

16. Taking into account that the power to sanction enacted by the clauses under challenge empowers the commission for the protection of rights, which has no jurisdiction, to limit or prevent internet access to subscribers as well as other persons who may benefit from it: that the competence granted to this authority is not limited to a particular category of people but rather extends to the whole population: that its powers could lead to restrictions on the right to express oneself and communicate freely, notably from their own home; that in such circumstances, having regard to the nature of the freedom guaranteed by article 11 of the Declaration of 1789, the legislator could not, irrespective of the guarantees surrounding the pronouncement of punishments, grant such powers to an administrative authority with the purpose of protecting the rightsholders of copyright and neighboring rights;

17. Taking into account, moreover, that by virtue of article 9 of the Declaration of 1789, all men are presumed innocent until found guilty; that consequently the legislature cannot in principle institute a presumption of guilt; that nonetheless, in exceptional cases, such presumptions can be created, notably for petty offenses (matière contraventionnelle), so long as they are not conclusive in nature, that the rights of the defense are observed, and the facts reasonably infer the probability of liability

18. Taking into account, in this particular case, that it follows from the clauses under review that carrying out an act of infringement from the internet subscriber’s address constitutes, according to the second paragraph of article L.331-21, “the materiality of the failures defined in article L. 336-3 “; that only the holder of an internet access subscription can be the target of the punishment put in place by the clause under review; that in order to be exonerated, he must, by virtue of article L. 331-38, produce proof of such a nature as to establish that the injury to copyright or neighboring rights resulted from fraud on the part of a third party; that by thus inverting the burden of proof, article 331-38 institutes, in breach of the requirements of article 9 of the Declaration of 1789, a presumption of guilt against the holder of internet access, enabling the imposition of punsihemnets both privative and in restriction of rights against him;