October 1, 2008 · Lessig
I’m in Brazil, just finished with a lecture, about to get on a plane back to the states. When I arrived last night, my inbox was full with a bunch of emails about an anti-Obama remix video that had been taken down from YouTube for copyright-related reasons by an pseudonymous user on YouTube named TheMouthPiece. I tried to follow the links to get to see it, but couldn’t. Finally, I was able to locate it, and make it available here for the purpose of demonstrating just what’s so wrong with the law of fair use and why it has got to change. (I’m forced to host this myself because of course no video site will not carry it, and I don’t want to further complicate the .torrent debates.)
First, and obviously, for anyone who has followed my work, I don’t support the substance of the video. It makes some interesting and important points about the problems leading up to this crisis. But I think the suggestion about Obama at the end is incorrect.
But second, and obviously again for anyone who has followed my work, the fact that this video was suppressed is ridiculous. (I don’t credit the suggestion it was suppressed for political reasons, though of course, the suppression lawyers don’t consult me, so I wouldn’t know.)
That it was suppressed, however, is a feature/bug of current copyright law. The video is making a powerful (if wrong, imho) argument about the source of responsibility for this financial mess. It uses text (sparsely placed, as is my own style too, though the author needs a better font), images of newspaper articles, pictures of the candidates, and clips from television, all to the end of making the political argument.
That part’s relatively easy from a fair use perspective. What isn’t is the music. As is increasingly the style for amateur (in the good sense of the word — people who do what they do for the love of what they do and not for the money) remix: music is attached to parts of the video to give it a special boost in social meaning, or significance. The cultural reference enhances the political. It becomes part of the story.
So, for example. when describing how Fannie and Freddie gave low interest and no interest loans, the music is Dire Straits “Money for Nothing.” And when talking about the speculation, Talking Head’s “Burning down the house.” When talking about the influence of money inside the campaigns, AcDc “Money Talks.” And when talking about how “it ends now” if (as the author but not this author hopes) Obama is defeated, the music is “Survivor – Eye of the Tiger.” In each case, the music amplifies the message in powerfully and socially relevant way.
[BUT NOTE: important disclaimer -- I am completely ignorant about the culture stuff, and have struggled to identify the music using lyric search engines. I have created a special page on my wiki which identifies all the songs I could identify, tagged to the seconds on the video. I have not had the time to verify this, or ask others to correct it. Please help by watching the video, and correcting any errors you see, and by filling out the description of the link between the lyrics and the message of the video]
So is this “fair use”? Well most of us would hope it is, but there’s no clear authority to support that idea. Music is historically (meaning over the past 20 years) extremely tightly regulated. We have no clear or good “fair use in music cases” except when the music is being used to criticize or comment upon the author whose music was being used. So, the Campbell case in the Supreme Court involved a parody of Roy Orbison’s song. That, the Court held, was fair use.
But in these amateur remix cases, the music isn’t being used to comment upon the copyright holders — ACDC isn’t being used, for example, to criticize them. And for this category of use, there is, again, no clear authority supporting a claim of fair use — which the record companies interpret to mean it is clearly not fair use.
Maybe it is. Maybe it isn’t. But this whole mess demonstrates clearly, in my view, the need for us to get beyond the “fair use” analysis. This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions. When it gets used commercially (by, say, YouTube), then, in my view, YouTube should be responsible for the work it is profiting from — through a flat, collective license, for example, either created by law, or negotiated by the parties. But only then should there be a “copyright event.” Until it is used commercially in that sense, the creator should be free to (re)create without employing a lawyer to muddle through the mess of complexity fair use law is. The law has no useful function in this context. Or put differently, amateur remix needs to be deregulated.
Instead, of course, the law today has it exactly backwards. It is the creator of this work who is the alleged copyright infringer under current law. And YouTube who is immune from liability so long as it removes the work as soon as it can.
This has got to change. We should be regulating in copyright where it makes copyright-sense to regulate. And in my view, it makes no copyright-sense to be regulating this kind of use. Sure, Tom Petty wouldn’t be happy with his work being associated with a conservative message. But so what. When your song is famous enough to provide this sort of support in a message like this, you’ve lost control of its meaning. And no doubt, you’ve been well compensated for that as well.
Let’s hope this bit of copyright over-regulation might begin to wake the Right up to the need for a significant bit of deregulation in the field of federal culture policy (aka, copyright law).