Still image from YouTube video by Stephanie Lenz.

With the high-handed arrogance to which copyright holders have become accustomed, Universal Music sent a cease-and-desist letter to a Pennsylvania mother who had uploaded a 29-second video of her toddler dancing to a garbled Prince song playing in the background. In a rare turn of events, the mother, Stephanie Lenz, sued Universal for sending her a meritless “takedown notice.” She said the notice harmed her fair use and free speech rights, and she wants damages in return.

“I was really surprised and angry when I learned my video was removed, Lenz told the Electronic Frontier Foundation, which helped her bring her lawsuit. “Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.” EFF staff attorney Corynne McSherry said that “Universal’s takedown notice doesn’t even pass the laugh test. Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video.”

Universal ultimately declined to argue that the video wasn’t fair use. But the company did argue that its mere assertion of a copyright violation should be sufficient justification for sending a takedown notice. Universal did not want to have to make a “fact-intensive inquiry” before sending out a notice, presumably because that would be too costly and time-consuming. And besides, Universal implied, it knows what is a copyright infringement. (Or in this case, Prince himself, who by one news report was directly involved in instigating the takedown notice in the first place.)

In other words, Universal Music wants to place the burden on individuals to vindicate their fair use rights when confronted with large corporations with armies of lawyers making unilateral assertions. Talk about ‘let’s go crazy’!

Federal judge Jeremy Fogel implicitly rejected this scenario and insisted that companies are perfectly capable of making fair-use determinations before they send out takedown notices. The judge’s ruling is a cold slap in the face for corporate copyright holders, who routinely threaten individuals with groundless cease-and-desist letters and act as if fair use is a legal triviality. By refusing to dismiss the case – and by squarely affirming the importance of citizens’ fair use rights – Judge Fogel delivers a welcome message that copyrights are not sweeping and absolute. The public’s fair use rights matter. Further evidence that fair use may be getting its groove back.

Before my very eyes citizens are rushing in to fill a vacuum left by news media consolidation and the debilitating loss of expert, professional reporting staff. Some laid off or pushed out journalists of note, still committed to their calling and their communities, are shaping digital, online public political discussion that incorporates new voices.

The democratic process, which depends on information gathering, analysis and dissemination, is a commons in peril. Hopeful, optimistic citizen advocates for local causes are turned cynical by the stronghold of money on political races, policy makers and the press. Even jaded operatives are waking up to the taint of money in national campaigns and efforts to pass legislation.

What is a commons? I think about it differently at different times—there is no ironclad definition. However I always say that the commons is one of these things: a natural resource that is freely inherited (such as water, biodiversity, or DNA) or a cultural resource (such as scientific knowledge or language) or social conventions and structures created by people, (such the stock market or a transit system). A commons may exist within or outside of a marketplace but it is best cared for by a collective rather than left to free market forces or government neglect and ineffective management. A commons may not be noticed until it is take away—as has happened with our precious clean air. A commons is something that really ought to belong to everybody, not just the rich, the privileged or whomever got there first.

But it looks like rescue is on the way for the commons of democratic discourse and practice—from small efforts to the global network of the iCommons My colleague David Bollier just presented this speech at the iCommons conference on the emergence of the commons sector.

The emerging political information commons here in the States is perhaps partly a re-birthing. Lessons can be learned from some of the old timers of media access. Decades ago I worked for a media organization—one of many student and community video access facilities proliferated throughout the country in the early 70’s. The advent of portable, consumer grade recording equipment (if you could call a hundred pounds of reel-to-reel videotape deck and gear portable) unleashed a wave of citizen news reporting, documentation, community broadcasting, screenings and video distribution that seems to be forgotten today.

The organization was University Community Video, now called Intermedia Arts. I catalogued a closet full of tapes from the early days for our state historical society that included: coverage of Vietnam War protests; eyewitness accounts of Native American legal battles; testimony by Black Americans displaced from housing by urban renewal; shows about women on welfare, rural poverty, and teenage pregnancy; early reporting on the AIDS epidemic; political satire; experimental dance and music; and profiles of unusual local personalities and businesses. A generation marched and alternative media makers were there to cover it—because nobody else did.

Our sister effort was low power community radio. Our cousins were neighborhood and under represented constituency newspapers and journals.

The current citizen journalism powered by the proliferation of inexpensive, easy ways to produce blogs, vlogs, text messages and news aggregators seems like déjà vu. The technologies and constituencies of this new brand of citizen journalism are crossing over and melding just as the old ones did. Yes, the old standard was analog and limited to broadcast over the airwaves and the new technology is digital and travels the globe almost at the speed of light, but the spirit is the same.

Today I see what is happening with commons sensitive eyes. I see implicit commons sector principles and organizing tactics in many of the new brand of public, participatory arts and media groups. Flat, non-hierarchical, decentralized management, born of necessity AND intention, make for porous organizations that let cross disciplinary magic happen. The next evolution of collaborative cross-fertilization, a messy process artists and cultural workers are uniquely comfortable with, is commons consciousness across isolated issue divides. And new communication technologies give these fertile parings new wings—for cheap.

I am compelled to deliver a word of caution for the online commons to remember to connect with well grounded groups that originate in diverse communities. I implore you to teach and adhere to important tenets of the commons: hold out for equity of access and benefit for all from a commons resource, protect it’s integrity, replenish it, and pass it on whole.

I worry about the possibility that practitioners of citizen reporting and arts activists are giving lip service only to nonpartisanship. Moderate the enthusiasm just a bit to insist on principles of accuracy and even-handedness. A commons approach eschews partisanship and ideology. The idea is not to build a new party or a new government. A commons viewpoint is neither left or right, progressive or conservative, Democratic, Republican, Libertarian or Green. It is not anti-Capitalist, although at first glance it may seem so. Commons thinking transcends these divisions. Commons is an old worldview of mutual responsibility and collective care that we all need to learn again.

With that said, hooray for The Unconvention. Hooray for interesting, engaging political actions powered by citizens like the imaginative “Your Yard, Our Message” lawn sign contest, eclectic personal messages on YouTube as part of “I Approve This Message,” (here is mine ) and courageous acts like “Kulture Klub Art Shanties” that claim space and give a political voice to youth experiencing homelessness.

Long live the commons. Long live democracy. Citizen journalist Kathleen Maloney signing off for now.