The Doppelganger Meme and Copyright

If you use Facebook you would know that there is a meme that is traveling around it to swap your photo for a photo of a “doppelganger” – someone famous that you look like.

It's pretty cool. Suddenly you see pictures of movie stars next to your friend's name and you realize how much they do or don't look like Marilyn or George or….

One of my FB friends made an interesting comment about this over the weekend. This practice voids the Terms Of Use that each member of FB agrees to when joining the service. (Everyone has to confirm that he or she has the right to upload and use any photo that they choose to display).

Because of the recent cases that have just had judgments handed down (EMI Music/”Downunder” vs Larrikin Music/”Kookaburra Sits In The Old Gum Tree on the one hand and iiNet vs Village Roadshow, AFACTS et al on the other) there is a growing focus on copyright law in the media and in the public.

Generally the public has no idea of copyright law, nor of how it works. Hence the great outpouring of emotional support for Men At Work currently, even though the band has only incidental relevance with the Downunder case as they were the artist performing the song, and not the writers of the song.

So here we have the possible misplaced support for one iconic song and its writers over another, primarily because there isn't a strong “sing along” resemblance between the songs (since it was an instrumental riff that was determined by the court to be the infringing material).

In the case of the iiNet case, the movie industry tried, unsuccessfully, to prove that an ISP in Australia was actively promoting the theft of copyrighted material in the form of movies.

Now this case actually has relevance for the ordinary man in the street (the men at work, if you will), because it is presumably the man in the street who is sharing or downloading the massive quantity of movies that are shared online every day, through bit torrent networks, through html traffic and through encrypted internet traffic too.

The failure of the movie companies to get their case up means that for the man in the street that is illegally sharing movies, there is now very little likelihood of their ISP actively intervening in this practice, even though the ISP would have a reasonable suspicion, one would figure, that if someone is consuming gigabytes of bandwidth each week/month it is unlikely that the user is just a prolific email user.

The use of the doppelganger photos by FB users is something that is a humorous activity that is unlikely to create a law suit for FaceBook in terms of the breach of copyright. It would be hard to imagine any star being able to assert that there was brand damage done by the association of his or her photo with Joe Bloggs for instance.

What we have here though that is actually quite interesting is that there is an awakening feeling in the community that copyright law is wrong. When enough people break a law it becomes more and more difficult to assert that the law is of value to the community. And when that happens it becomes difficult to argue why the law should still be on the statute books.

So this seems to me to mean that there needs to be a re-evaluation of the concept of “fair use” in a digital society.

According to Wikipedia:

“Fair use is a doctrine in United States copyright law
that allows limited use of copyrighted material without requiring
permission from the rights holders, such as for commentary, criticism,
news reporting, research, teaching or scholarship. It provides for the
legal, non-licensed citation or incorporation of copyrighted material
in another author's work under a four-factor
balancing test.”

Clearly copyright as a concept has been fought for long and hard over many years and it should not be dispensed with because of a populist movement to breach many aspects of the law.

The way to fix the problem, and it is a major problem, is as follows:

1. The copyright industry should lobby for “fair use” to be incorporated into the Act and that should provide that all content that is shared online does not constitute a breach of copyright if there is no profit motive for the transfer of the material.
2. A bandwidth copyright fee should be introduced that is paid for the transfer of copyrighted material. This should be a very small fee, that is collected from the ISP.
3. A tariff on memory should be introduced that essentially taxes blank memory and is paid to a society that accounts to rights holders.

This may take time, but is absolutely necessary in order to stop what are essentially non-productive law suits that ultimately criminalize the working man in order to see a growth in copyright industries with an increase in productivity and profitability.

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