In a provocative Dec. 9th, 2011 post to his Waxy blog technologist Andy Baio explores how copyright law is understood (misunderstood?) by millions of young people uploading content to YouTube.
It is common to see disclaimers online next to content that is used without the author's permission: e.g., "Please no copyright infringement. I only put this up as a project."
Students of copyright law know that these kinds of disclaimers - or simply saying that your mash-up is permitted under "fair use" - may not have the desired effect. The big content owners have even resorted to arresting a prominent producer of mixtapes, DJ Drama, in early 2007 - even though public performance of DJ Drama's mixtapes was probably good promotion for the underlying works.
And, even after the arrest of DJ Drama, millions of young people are still engaging in conduct that big media companies see as illegal.
Most of the fear of remixes and mash-ups online can be traced to the disruption in business models caused by the new technology of the Internet. As James Allworth wrote in a March 31, 2011 post to the Harvard Business Review: "Despite making their living relying on it, the Big Content players do not understand technology, and never have. Rather than see it as an opportunity to reach new audiences, technology has always been a threat to them. Example after example abounds of this attitude; whether it was the VCR which was "to the American film producer and the American public as the Boston strangler is to the woman home alone" as famed movie industry lobbyist Jack Valenti put it at a congressional hearing, or MP3 technology, which they tried to sue out of existence. In fact, it's possible to go back as far as the gramophone and see the content industries rail against new technology. The reason why? Every shift in technology is difficult for them. Just as they work out how to make money using one technology, it changes."
So, as Andy Baio explains: "Remix culture is the new Prohibition, with massive media companies as the lone voices calling for temperance. You can criminalize commonplace activities from law-abiding people, but eventually, something has to give."
What will give? Will the copyright law change to make non-commercial remixes and mashups legal? Will the solution include revenue-sharing - splitting up the money that YouTube is making from ads that appear with remixes and mash-ups and sharing it with the owners of the underlying content?
As anyone who goes online knows, the system is broken - copyright content is regularly used without permission and the policing is so inconsistent that users don't know what is allowed and what isn't. For example, both Andy Baio and I are amazed that the full-length version of Pulp Fiction, remixed so that the scenes unfold in chronological order (below), remains online (why hasn't Miramax asked for a "take down?"):