Lessig

The Constitution was a remix of earlier sentiments and phrases. The Judeo-Christian religion is a remix of earlier sentiments and phrases. Can the right of man to "remix" be circumscribed by what are themselves remixes?

Ah, but you did gloss over an important point when you stated that "there was no plausible way in which Prince or Universal was being harmed by Holden Lenz."

Many people would be unable to imagine how this could possibly be detrimental. But for the record company, this was a direct assault on their most fundamental claim - pay for performance. So while you're correct to say that no one who wanted 'Let's Go Crazy' in their library would ever settle for a lousy rip from YouTube, that doesn't mean that there was no harm at all. Any time there's a performance without pay, there's harm. From a record company's perspective, that principle is as inviolable as the law of gravity.

And it was a performance. Remove the background track, and all of a sudden the piece looses most of its value. It may have still delighted members of the immediate family, but would it have gotten 3/4 a million views? Unlikely.

Well, sure, but this is fair use, right? Also unlikely. There was no news about Prince here, no academic research, no critical discourse concerning him or his work. It wasn't even a parody. In short, it could make no plausible claim to fair use. It was simply a performance.

And that's why the record company expects to get paid. They participated in this hit, and they want their royalty. More specifically, Prince expects them to enforce the terms of the contract they've signed with him, which stipulates per-performance royalties.

Of course, people could say that's, well, crazy. After all, not only was no money made, no money even changed hands. But here again, there's a failure to grasp what the record company considers to be the core issue.

The first is the idea that this is 'okay' because it was non-commercial, and more to the point, it was in the low quality, and background. So what if it had been high quality? High enough for somebody who did want to circumvent retail channels to think they could rip this for free? Do we start coming up with universal standards for degradation, and start policing anybody who releases something that exceeds a certain, industry approved level of crappiness? And do we get Congress to do this for us? And what do the record companies get in return? If they're going to abandon - or even modify - their fundamental pay-for-performance model, they're going to want something in return, right? Currently, they're not being offered anything. So they're responding in an equally abrupt manner. It's basic tit-for-tat, and as old as negotiation itself.

The larger issue is that thee was no possibility of the record label getting paid. The fair thing would be for Google to offer a free Amazon / iTunes link to the song right there in YouTube. They should actually do this for any rights holder who can make a legitimate claim to any element of the video. But they don't Not yet, anyway. So until they do, I can see rights holders sticking to their guns, however mean-spirited and irrational this seems to the rest of the world. And this is exactly what they should do.

I have enormous support for remix culture, and remain dismayed by its marginal legal status. But what I'm leery of is the idea that remix culture can be developed purely on Google's terms. If something remixed gets enough attention (which, let's fact it, is the new currency) and Google is a currency exchange with all monetary gains accruing to them (via Ad-Sense billings) then they should, at the very least, offer the supporting players (i.e. contributing rights holders) the means to make the same conversion for themselves. And again, they should do this for the same price as the posting ($0.00).

From what I understand, they've got something like this in the works. But it's disconcerting to see how long it has taken. For the first time in my life, I'm actually cheering the record companies for taking such a hard and unpopular position, if only because it's profoundly fair. And because there's no reason to think that Google would volunteer to do the right thing if they weren't subject to real legal pressure. After all 'don't be evil' is a marketing slogan, not a contractual obligation.

I am not sure this is even a “remix” vs a spontaneous capture of a baby dancing.

With an intentional remix, once out of the safe-harbor fair use, one plans ahead and can choose public-domain, creative commons or legally paid for commercial music.

If one spontaneously captures a baby or anyone dancing, one can’t recreate the spontaneous moment. Is there an exception for it?

Most of the time, if the spontaneous music captured is captured through a cheap microphone, the music quality sucks, and would be less of a commercial threat.

Great article. I'm wondering whether the UK Copyright Act exemption for works incidentally included in films would apply to this - although the right is fairly severly restricted for music. Certainly, if Stephanie Lenz had deliberately played the song to make the movie, she wouldn't be able to avail herself of the right, although she has a much stronger argument if she happened to grab the camera once the song had started playing (and either someone else had put it on the CD, or if she had started playing the CD without any intention of making the film) and her son started dancing. There's very little case law on this topic, unfortunately, as standard practice seems to be to try to get rights clearance for everything.

Incidentally, (as I'm sure you know, but let's blame the sub-editors) it's "vocal cords", not "vocal chords".

@MN Pundit: there are gratifying signs that the seemingly relentless increase in copyright's scope does seem to be rolling back in certain parts of the world. The Gowers Review in the UK recommended against term extension for sound recordings in the UK, and the legislators recently threw out such a proposal. I also recall that Japan has rejected a call for extension of copyright from life+50 to life+70, but my rudimentary googling skills haven't managed to confirm this.

- Andrew

I found your impassioned defense of "creators" interesting given your relentless assault on those of us who actually make a living from our creative works. I have been a professional songwriter, not a performing artist, not a record label, for 30 years and have seen my profession and my own income decimated by piracy.
You harp for several paragraphs about the frivolous Prince/YouTube dust up, then, as an afterthought, mention briefly how professional creators and all those involved in the creation of music should get paid from "the host of proposals that would assure.." our income. Exactly what are those proposals and which do you support? There are a "host of proposals" to curtail internet piracy but you seemingly oppose each and every one. "we can't kill this creativity..." you say, but you're only too happy to support the slow strangulation of the creators responsible for the amazing music, movies etc of the past 50 years.
And, again, the old innocent sounding "sharing" verb rears it's head. I had hoped to "share" the fruits of my labor in the form of tuition checks made out to UC for my kid's education, but I'm sorry to say your defense of those who rampantly, illegally have been "sharing" my songs has been so effective that that is no longer an option.
Last question. Who funds you and your chair at Stanford? Who stands to profit if your view of the world prevails? Google perhaps? I noticed the new Ipod slogan is "millions of songs, thousands of movies, hundreds of games."
Of course Apple believes that their youthful demographic will pay millions of dollars to legally fill such a device.
Do they fund EFF, Digital Freedom, CEA? Follow the $.
We'll, I'm off to write a song since that's what I do for a living. I invite you to come to Nashville sometime and I'll buy you lunch and show you around the songwriting community, or what's left of it.

Bob,

I'd like to first of all point out that I have little interest in dictating "oughts" and "shoulds". My statements are simply meant as observations about how the world is, and how it can or cannot come to be.

A simple truism is this: Once knowledge is public, it's public. If you disclose a particular secret to a large enough group of people, it ceases to be secret. This has been true throughout history, but with our new computer-accelerated lifestyles it's more important than ever. You see, a recorded song or film is nothing more or less than a unit of knowledge. There's a certain finite number of facts about a song (the first byte is 0F, the second is 14...) which taken together, constitute that song.

An unavoidable property of information is that if you're going to give a person the means to listen to a song, you are disclosing to that person every single one of those facts. There is no way to give me a piece of recorded audio, such that I can hear it on demand, with digital clarity, but hide from me any of the facts which make up the song. That would be like simultaneously disclosing and concealing a secret.

Imagine that I had some secret, and it was very very important to me that the secret remained only with those to whom I had disclosed it personally. Perhaps I've come up with a very funny joke that provides the listener with great enjoyment, so I've decided to charge money for the privilege of listening to my joke. And to preserve the scarcity of that joke-hearing experience (and therefore its market value) I decide that I'll only sell the joke bundled with a non-disclosure agreement.

Do you imagine this is a viable business model? I don't. NDA or no, I know that once enough people have heard my joke, the scarcity is going to vanish because people like to tell jokes, and because they know very well that I can't snoop on every conversation in the city to enforce NDA compliance.

The only difference between a joke and a recorded song (or at least the only thing relevant to the metaphor) is the fact that a person can easily remember a joke in its entirety. The thing that has protected the scarcity of recorded media so far has been the fact that they're constituted by a far larger number of facts than we can easily exchange in a conversation.

Computers allow us to automate and accelerate the mechanical nitty-gritty of exchanging facts. They provide a boost to the information-exchanging we've already been doing forever, but that boost does not qualitatively change the way we have always shared facts. It just makes it many thousands of times faster.

Now. I'm awfully sorry that so many music industry people wagered their livelihoods on the fact that this was hard to do. That's rough.

But are we eventually going to give up on the idea that you can produce a particular set of facts once and sell them indefinitely, or are we going to outlaw the general-purpose computer? I don't see that there's a third option.

Where to start?
To Will. I won't give myself carpal tunnel typing an explanation of how the music business works, what BMI is and how a songwriter gets paid --or not-- etc. Shoot me an e-mail at NSAI and/or come down to Nashville sometime and you'll get some facts about labels, artists, publishers and songwriters instead of the ill informed crap from the blog-o-sphere you have taken for the truth. If I don't change your mind, I'll buy you lunch when LL and I go. If I do, you can buy me dinner.
To Mike;
You're obviously a knowledgeable type but....this being America and there being such a thing as a Constitution, and an Article 1 Section 8 therein, I still have "the exclusive right" to my writings and discoveries. Look it up. The fact that there is now a new, digital, means of transmission of my writings does not trump the Constitution. You are welcome to go to DC and attempt to change copyright law if you so choose.
The fact is, music still has great commercial value in the marketplace. There is are large sums of $ being made from that music, but the creators and the industry that supports them are not being paid. The same people who make the $, inflame the blog-o-sphere and fight any attempts to curtail the piracy. Follow the $.
The last year I bothered to look, the top 50 songs downloaded on p2p sites were, every one, songs by major label artists. Hate to tell you but most of the people in the music, movie, video game industry are there because they worked their asses off for years to get the skills necessary to create something that has value in a incredibly competitive marketplace.
I'll shrug my shoulders, give up the fight to protect my property and go to work at Home Depot if every owner of any intellectual property, that includes Google, Apple, etc., does the same. Any takers?

'You are welcome to go to DC and attempt to change copyright law if you so choose.'

Well, as far as I know, that's what we've all been arguing about doing. Historically, though, the industry insiders have been more successful in getting copyright changed toward their goals than anyone from the 'information is free' camp.

But consider if this same sentiment came from the other side: "You are welcome to go to and attempt to change the way information behaves if you so choose."

I understand that copyright is guaranteed in the constitution, and for the period of time when it's been enforcable, I even agree that it has helped creativity more than it has hurt. But I don't think any government could possibly promise to enforce this right without undermining other, far more fundamental ones (such as the right to tell secrets).

So I'm not saying "let's abolish copyright" so much as "let's watch helplessly while it dies."

"I'll shrug my shoulders, give up the fight to protect my property and go to work at Home Depot if every owner of any intellectual property, that includes Google, Apple, etc., does the same. Any takers?"

I think before long, we'll all be shrugging that shrug in unison.

Bob,

I think I will take up this bet. I don't think copyright will cease either, but I predict at least a couple of significant changes. There are restrictions on the use of a copyrighted work which will still be enforceable and useful in the future. Public performances of a work in real-space environments, for instance, will always be detectable and punishable in the traditional fashions regardless of how the Internet enables communication. Radio and cinema are still distribution channels which are readily monetizable for the time being. (TV and home video, probably not. Bandwidth and video compression have put those within the reach of the home user already.) Live shows are pretty much untouchable, because there's no good way to save and redistribute a concert.
Copyright will continue to govern these arenas for as long as they are profitable enough to fight over.

But I think redistribution of media for personal use only, is going to become an effective right within the next couple of decades. Assuming bandwidth availability and computing power continue to increase, the only way to prevent this would be ubiquitous government surveillance.

When you ask me if Thiel and Weiss should be paid, you invite me back into the realm of normative discussion. I love the song and I hope it has made them both a lot of money, but I don't think any amount of deserving to get paid is going to change the public-knowledge effect I described before. So words like "should" don't really belong in my argument at all.

But if we're gonna get normative, did people start writing beautiful songs after the technologies for monetizing them for mass-production fell into place? Do you think that people will stop writing beautiful songs after it becomes impossible to prevent anybody from listening to them?

We may be looking at the end of the billion dollar media industries, but we aren't talking about the end of art here.