Disciplining the Vernacular: Fair Use, YouTube, and Remixer Agency
Authors: Conti Olivia 
Published: October 2020

Introduction	The research from which this piece derives explores political remix video (PRV), a genre in which remixers critique dominant discourses and power structures through guerrilla remixing of copyrighted footage (“What Is Political Remix Video?”). Specifically, I examined the works of political video remixer Elisa Kreisinger, whose queer remixes of shows such as Sex and the City and Mad Men received considerable attention between 2010 and the present. As a rhetoric scholar, I am attracted not only to the ways that remix functions discursively but also the ways in which remixers are constrained in their ability to argue, and what recourse they have in these situations of legal and technological constraint. Ultimately, many of these struggles play out on YouTube. This is unsurprising: many studies of YouTube and other user-generated content (UGC) platforms focus on the fact that commercial sites cannot constitute utopian, democratic, or free environments (Hilderbrand; Hess; Van Dijck). However, I find that, contrary to popular belief, YouTube’s commercial interests are not the primary factor limiting remixer agency. Rather, United States copyright law as enacted on YouTube has the most potential to inhibit remixers. This has led to many remixers becoming advocates for fair use, the provision in the Copyright Act of 1976 that allows for limited use of copyrighted content. With this in mind, I decided to delve more deeply into the framing of fair use by remixers and other advocates such as the Electronic Frontier Foundation (EFF) and the Center for Social Media.	In studying discourses of fair use as they play out in the remix community, I find that the framing of fair use bears a striking similarity to what rhetoric scholars have termed vernacular discourse—a discourse emanating from a small segment of the larger civic community (Ono and Sloop 23). The vernacular is often framed as that which integrates the institutional or mainstream while simultaneously asserting its difference through appropriation and subversion. A video qualifies as fair use if it juxtaposes source material in a new way for the purposes of critique. In turn, a vernacular text asserts its “vernacularity” by taking up parts of pre-existing dominant institutional discourses in a way that resonates with a smaller community. My argument is that this tension between institutional and vernacular gives political remix video a multivalent argument—one that presents itself both in the text of the video itself as well as in the video’s status as a fair use of copyrighted material. Just as fair use represents the assertion of creator agency against unfair copyright law, vernacular discourse represents the assertion of a localised community within a world dominated by institutional discourses. In this way, remixers engage rights holders and other institutions in a pleasurable game of cat and mouse, a struggle to expose the boundaries of draconian copyright law. YouTube’s Commercial InterestsYouTube’s commercial interests operate at a level potentially invisible to the casual user. While users provide YouTube with content, they also provide the site with data—both metadata culled from their navigations of the site (page views, IP addresses) as well as member-provided data (such as real name and e-mail address). YouTube mines this data for a number of purposes—anything from interface optimisation to targeted advertising via Google’s AdSense. Users also perform a certain degree of labour to keep the site running smoothly, such as reporting videos that violate the Terms of Service, giving videos the thumbs up or thumbs down, and reporting spam comments. As such, users involved in YouTube’s participatory culture are also necessarily involved in the site’s commercial interests. While there are legitimate concerns regarding the privacy of personal information, especially after Google introduced policies in 2012 to facilitate a greater flow of information across all of their subsidiaries, it does not seem that this has diminished YouTube’s popularity (“Google: Privacy Policy”).Despite this, some make the argument that users provide the true benefit of UGC platforms like YouTube, yet reap few rewards, creating an exploitative dynamic (Van Dijck, 46). Two assumptions seem to underpin this argument: the first is that users do not desire to help these platforms prosper, the second is that users expect to profit from their efforts on the website. In response to these arguments, it’s worth calling attention to scholars who have used alternative economic models to account for user-platform coexistence. This is something that Henry Jenkins addresses in his recent book Spreadable Media, largely by focusing on assigning alternate sorts of value to user and fan labour—either the cultural worth of the gift, or the satisfaction of a job well done common to pre-industrial craftsmanship (61). However, there are still questions of how to account for participatory spaces in which labours of love coexist with massively profitable products. In service of this point, Jenkins calls up Lessig, who posits that many online networks operate as hybrid economies, which combine commercial and sharing economies. In a commercial economy, profit is the primary consideration, while a sharing economy is composed of participants who are there because they enjoy doing the work without any expectation of compensation (176). The strict separation between the two economies is, in Lessig’s estimation, essential to the hybrid economy’s success. While it would be difficult to incorporate these two economies together once each had been established, platforms like YouTube have always operated under the hybrid principle. YouTube’s users provide the site with its true value (through their uploading of content, provision of metadata, and use of the site), yet users do not come to YouTube with these tasks in mind—they come to YouTube because it provides an easy-to-use platform by which to share amateur creativity, and a community with whom to interact. Additionally, YouTube serves as the primary venue where remixers can achieve visibility and viral status—something Elisa Kreisinger acknowledged in our interviews (2012). However, users who are not concerned with broad visibility as much as with speaking to particular viewers may leave YouTube if they feel that the venue does not suit their content. Some feminist fan vidders, for instance, have withdrawn from YouTube due to what they perceived as a community who didn’t understand their work (Kreisinger, 2012). Additionally, Kreisinger ended up garnering many more views of her Queer Men remix on Vimeo due simply to the fact that the remix’s initial upload was blocked via YouTube’s Content ID feature. By the time Kreisinger had argued her case with YouTube, the Vimeo link had become the first stop for those viewing and sharing the remix, which received 72,000 views to date (“Queer Men”). Fair Use, Copyright, and Content IDThis instance points to the challenge that remixers face when dealing with copyright on YouTube, a site whose processes are not designed to accommodate fair use. Specifically, Title II, Section 512 of the DMCA (the Digital Millennium Copyright Act, passed in 1998) states that certain websites may qualify as “safe harbours” for copyright infringement if users upload the majority of the content to the site, or if the site is an information location service. These sites are insulated from copyright liability as long as they cooperate to some extent with rights holders. A common objection to Section 512 is that it requires media rights holders to police safe harbours in search of infringing content, rather than placing the onus on the platform provider (Meyers 939). In order to cooperate with Section 512 and rights holders, YouTube initiated the Content ID system in 2007. This system offers rights holders the ability to find and manage their content on the site by creating archives of footage against which user uploads are checked, allowing rights holders to automatically block, track, or monetise uses of their content (it is also worth noting that rights holders can make these responses country-specific) (“How Content ID Works”). At the current time, YouTube has over 15 million reference files against which it checks uploads (“Statistics - YouTube”). Thus, it’s fairly common for uploaded work to get flagged as a violation, especially when that work is a remix of popular institutional footage. If an upload is flagged by the Content ID system, the user can dispute the match, at which point the rights holder has the opportunity to either allow the video through, or to issue a DMCA takedown notice. They can also sue at any point during this process (“A Guide to YouTube Removals”). Content ID matches are relatively easy to dispute and do not generally require legal intervention. However, disputing these automatic takedowns requires users to be aware of their rights to fair use, and requires rights holders to acknowledge a fair use (“YouTube Removals”). This is only compounded by the fact that fair use is not a clearly defined right, but rather a vague provision relying on a balance between four factors: the purpose of the use, character of the work, the amount used, and the effect on the market value of the original (“US Copyright Office–Fair Use”). As Aufderheide and Jaszi observed in 2008, the rejection of videos for Content ID matches combined with the vagaries of fair use has a chilling effect on user-generated content. Rights Holders versus RemixersRights holders’ objections to Section 512 illustrate the ruling power dynamic in current intellectual property disputes: power rests with institutional rights-holding bodies (the RIAA, the MPAA) who assert their dominance over DMCA safe harbours such as YouTube (who must cooperate to stay in business) who, in turn, exert power over remixers (the lowest on the food chain, so to speak). Beyond the observed chilling effect of Content ID, remix on YouTube is shot through with discursive struggle between these rights-holding bodies and remixers attempting to express themselves and reach new communities. However, this has led political video remixers to become especially vocal when arguing for their uses of content. For instance, in the spring of 2009, Elisa Kreisinger curated a show entitled “REMOVED: The Politics of Remix Culture” in which blocked remixes screened alongside the remixers’ correspondence with YouTube. Kreisinger writes that each of these exchanges illustrate the dynamic between rights holders and remixers: “Your video is no longer available because FOX [or another rights-holding body] has chosen to block it (“Remixed/Removed”). Additionally, as Jenkins notes, even Content ID on YouTube is only made available to the largest rights holders—smaller companies must still go through an official DMCA takedown process to report infringement (Spreadable 51). In sum, though recent technological developments may give the appearance of democratising access to content, when it comes to policing UGC, technology has made it easier for the largest rights holders to stifle the creation of content.Additionally, it has been established that rights holders do occasionally use takedowns abusively, and recent court cases—specifically Lenz v. Universal Music Corp.—have established the need for rights holders to assess fair use in order to make a “good faith” assertion that users intend to infringe copyright prior to issuing a takedown notice. However, as Joseph M. Miller notes, the ruling fails to rebalance the burdens and incentives between rights holders and users (1723). This means that while rights holders are supposed to take fair use into account prior to issuing takedowns, there is no process in place that either effectively punishes rights holders who abuse copyright, or allows users to defend themselves without the possibility of massive financial loss (1726). As such, the system currently in place does not disallow or discourage features like Content ID, though cases like Lenz v. Universal indicate a push towards rebalancing the burden of determining fair use. In an effort to turn the tables, many have begun arguing for users’ rights and attempting to parse fair use for the layperson. The Electronic Frontier Foundation (EFF), for instance, has espoused an “environmental rhetoric” of fair use, casting intellectual property as a resource for users (Postigo 1020). Additionally, they have created practical guidelines for UGC creators dealing with DMCA takedowns and Content ID matches on YouTube. The Center for Social Media has also produced a number of fair use guides tailored to different use cases, one of which targeted online video producers. All of these efforts have a common goal: to educate content creators about the fair use of copyrighted content, and then to assert their use as fair in opposition to large rights-holding institutions (though they caution users against unfair uses of content or making risky legal moves that could lead to lawsuits). In relation to remix specifically, this means that remixers must differentiate themselves from institutional, commercial content producers, standing up both for the argument contained in their remix as well as their fair use of copyrighted content.In their “Code of Best Practices for Fair Use in Online Video,” the Center for Social Media note that an online video qualifies as a fair use if (among other things) it critiques copyrighted material and if it “recombines elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements” (8). These two qualities are also two of the defining qualities of political remix video. For instance, they write that work meets the second criteria if it creates “new meaning by juxtaposition,” noting that in these cases “the recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended” (9). Remixes that use elements of familiar sources in unlikely combinations, such as those made by Elisa Kreisinger, generally seek to reach an audience who are familiar with the source content, but also object to it. Sex and the City, for instance, while it initially seemed willing to take on previously “taboo” topics in its exploration of dating in Manhattan, ended with each of the heterosexual characters paired with an opposite sex partner, and forays from this heteronormative narrative were contained either within in one-off episodes or tokenised gay characters. For this reason, Kreisinger noted that the intended audience for Queer Carrie were the queer and feminist viewers of Sex and the City who felt that the show was overly normative and exclusionary (Kreisinger, Art:21). As a result, the target audience of these remixes is different from the target audience of the source material—though the full nuance of the argument is best understood by those familiar with the source. Thus, the remix affirms the segment of the viewing community who saw only tokenised representations of their identity in the source text, and in so doing offers a critique of the original’s heteronormative focus.Fair Use and the VernacularVernacular discourse, as broadly defined by Kent A. Ono and John M. Sloop, refers to discourses that “emerge from discussions between members of self-identified smaller communities within the larger civic community.” It operates partially through appropriating dominant discourses in ways better suited to the vernacular community, through practices of pastiche and cultural syncretism (23). In an effort to better describe the intricacies of this type of discourse, Robert Glenn Howard theorised a hybrid “dialectical vernacular” that oscillates between institutional and vernacular discourse. This hybridity arises from the fact that the institutional and the vernacular are fundamentally inseparable, the vernacular establishing its meaning by asserting itself against the institutional (Howard, Toward 331). When put into use online, this notion of a “dialectical vernacular” is particularly interesting as it refers not only to the content of vernacular messages but also to their means of production. Howard notes that discourse embodying the dialectical vernacular is by nature secondary to institutional discourse, that the institutional must be clearly “structurally prior” (Howard, Vernacular 499). With this in mind it is unsurprising that political remix video—which asserts its secondary nature by calling upon pre-existing copyrighted content while simultaneously reaching out to smaller segments of the civic community—would qualify as a vernacular discourse.The notion of an institutional source’s structural prevalence also echoes throughout work on remix, both in practical guides such as the Center for Social Media’s “Best Practices” as well as in more theoretical takes on remix, like Eduardo Navas’ essay “Turbulence: Remixes + Bonus Beats,” in which he writes that:In brief, the remix when extended as a cultural practice is a second mix of something pre-existent; the material that is mixed for a second time must be recognized, otherwise it could be misunderstood as something new, and it would become plagiarism […] Without a history, the remix cannot be Remix. An elegant theoretical concept, this becomes muddier when considered in light of copyright law. If the history of remix is what gives it its meaning—the source text from which it is derived—then it is this same history that makes a fair use remix vulnerable to DMCA takedowns and other forms of discipline on YouTube. However, as per the criteria outlined by the Center for Social Media, it is also from this ironic juxtaposition of institutional sources that the remix object establishes its meaning, and thus its vernacularity. In this sense, the force of a political remix video’s argument is in many ways dependent on its status as an object in peril: vulnerable to the force of a law that has not yet swung in its favor, yet subversive nonetheless.With this in mind, YouTube and other UGC platforms represent a fraught layer of mediation between institutional and vernacular. As a site for the sharing of amateur video, YouTube has the potential to affirm small communities as users share similar videos, follow one particular channel together, or comment on videos posted by people in their networks. However, YouTube’s interface (rife with advertisements, constantly reminding users of its affiliation with Google) and cooperation with rights holders establish it as an institutional space. As such, remixes on the site are already imbued with the characteristic hybridity of the dialectical vernacular. This is especially true when the remixers (as in the case of PRV) have made the conscious choice to advocate for fair use at the same time that they distribute remixes dealing with other themes and resonating with other communities. ConclusionPolitical remix video sits at a fruitful juncture with regard to copyright as well as vernacularity. Like almost all remix, it makes its meaning through juxtaposing sources in a unique way, calling upon viewers to think about familiar texts in a new light. This creation invokes a new audience—a quality that makes it both vernacular and also a fair use of content. Given that PRV is defined by the “guerrilla” use of copyrighted footage, it has the potential to stand as a political statement outside of the thematic content of the remix simply due to the nature of its composition. This gives PRV tremendous potential for multivalent argument, as a video can simultaneously represent a marginalised community while advocating for copyright reform. This is only reinforced by the fact that many political video remixers have become vocal in advocating for fair use, asserting the strength of their community and their common goal.In addition to this argumentative richness, PRV’s relation to fair use and vernacularity exposes the complexity of the remix form: it continually oscillates between institutional affiliations and smaller vernacular communities. However, the hybridity of these remixes produces tension, much of which manifests on YouTube, where videos are easily responded to and challenged by both institutuional and vernacular authorities. In addition, a tension exists in the remix text itself between the source and the new, remixed message. 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