Remix and Fairness

Professor Robert Merges has commented recently on the remix debate, making the point that present copyright law should not be fundamentally changed in order to accommodate the needs of DJs, remixers, mash-uppers and the like, who use snippets, cuts and elements of existing copyrighted material for their own productions.

One argument for existing copyright law is that enforcement is costly, therefore imperfect, therefore reality leaves generous margins for de jura illegal behavior to exist, which in fact becomes “legitimate” due to practical enforcement problems. In simple words, much unlicensed remix is thriving under the present regime without actual threat of lawsuits for copyright infringement. The second, and more elaborated argument is about the fairness in protecting original right holders and the unfairness in recognizing a legal “right” to remix.

As to the first argument, it escapes me why the fact that a law cannot be enforced (because it too expensive, too complicated, or practical impossible)- makes it a good law. Maybe the opposite is true. Perhaps the fact that so much uncontrolled, unlicensed and illegal activity is happening should help to recognize that the law, in its present form, does not pass the most important test. You can call it the reality test.

But most of the discussion is devoted to fairness, and Locke’s labor theory is mentioned as the theoretical rationale for granting property rights and protecting creators of original expressions who work hard and try to make ends meet. I have no special objections to Lockean justifications to copyright law. But today I came across this article in the NYT spreading over the front (online) page, with a picture! The reporter seems outraged. It is not only because famous DJ’s are treated like drug dealers for using copyrighted material while making so-called “mixtapes” (described as “album-length compilations of 20 or so songs, often connected by a theme; they are produced and mixed by a D.J. and usually ‘hosted’ by a rapper, well known or up-and-coming, who peppers the disc with short boasts, shout-outs or promotions for an upcoming album.”) Much of the fury is due to the claim that the arrested characters were (allegedly) paid by the record labels that later coordinated the police raid. The article suggested a collaboration between the industry and remixers, as mixtapes are said to promote sale of official releases:

Record labels regularly hire mixtape D.J.’s to produce CDs featuring a specific artist. In many cases, these arrangements are conducted with a wink and a nod rather than with a contract; the label doesn’t officially grant the D.J. the right to distribute the artist’s songs or formally allow the artist to record work outside of his contract.

it seems that when the mixtapes become too successful, the RIAA brings the police. Wonder what John Locke would have to say about that.

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