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).

  • http://richardmondello.com/ Richard Mondello

    Unfortunately, this post showed up as one giant paragraph in my RSS reader, making it incredibly hard to read. If that could be fixed in the future, that’d be great.

    Keep it up, Mr. Lessig.

  • Null

    Just a small correction: “Burning Down the House” was by the Talking Heads. While I’m not sure David Byrne would be thrilled with this video’s message either, he might be supportive of fair use. He’s no fan of the over-regulation of copyright, he’s had his own issues with the RIAA, and I know he’s quoted you on more than one occasion.

  • lessig

    @Richard, sorry, and we’re working on it.

    @Null: see, I told you I was an idiot about this. Corrected.

  • Null

    Happy to be of service. =)

  • J

    Substantively, this video is patently dishonest — it makes things up about the CRA, equates “subprime lending” with the CRA, misleads the viewer about lending laws and Fannie Mae, and uses quick cutting to flashes of out of context headlines to try to keep the viewerfrom noticing the logical holes. (See, e.g., this particularly egregious example that shows up at 7:43 – http://blogs.tnr.com/tnr/blogs/the_plank/archive/2008/06/14/obama-education-and-accountability.aspx.) One sees why Lenin thought that motion picture propaganda was so important to the early Soviet Union.

    I know that’s not the point of this post, but here’s the thing. You write: “This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions.” I’m not so sure that I can go that far because the uses here barely qualify as remixes since the author basically lifts most of these songs wholesale. The video uses nearly 3 minutes of “Money for Nothing,” a minute of the the Dave Mathews-y “Free Falling,” a minute of “Hero,” 2 minutes of “Money Talks,” 2.5 minutes of whatever comes next, and about a minute of “Eye of the Tiger.” Considering that each of the original works is 3-4 minutes total, these are significant uses, beyond what is beyond fair and should be freely available.

    The editor uses so much so that it implies sponsorship of the original, which is particularly problematic when syncing music to video. (It’s not for nothing that sync rights are not included in ASCAP commercial licenses.) If I were, say, Mark Knopfler, I could see getting a little pissed that someone had taken half of my copyrighted song to help make a point I found odious and misleading.

  • Ben

    J:

    One of the things I treasure about Prof. Lessig’s blog is his rejection of a binary decision tree. He spoke of this after he called Gov. Palin’s interview performance “great”. So I can understand how this video is a “great” example of mix-up, even if the political point isn’t “great” to me or to him.

    You say that you know the point of the video is not the point Lessig is trying to make. You then twist your rejection of that message into a rejection of Lessig’s position: “I’m not so sure that I can go that far”. You use as justification the idea that “If I were, say, Mark Knopfler, I could see getting a little pissed that someone had taken half of my copyrighted song to help make a point I found odious and misleading.”

    I don’t know you, and (more importantly) you don’t know me. I am not skilled in making this medium carry the intent of respect for you, and your conclusions, while at the same time expressing my feeling that your reasoning is unconvincing. I want to tell you I think your reasoning is flawed.

    Of course Mark Knopfler has every right to be pissed. And he could become quite vocal about it; perhaps he should. However (unless I misread your intent) Mr. Knopfler would have no right (in my moral judgement) to punish the amateur who created this video – certainly no legal, punitive action derived from his copyright on his music. Prof. Lessig suggests that perhaps YouTube, the for-profit organization who generates revenue from this video, would be a more appropriate target for copyright derived action. But I don’t think YouTube is the right target for the main thrust of the video, which is at heart a political message. YouTube does not exercise political editorial control over the videos posted, so Mr. Knopfler should move politically against the creators of the video to quench his political peevishness.

    But why can’t you support the right of the amateur (Prof. Lessig’s word, with his caveat emphasized!) to use this music? Don’t justify it with you understanding of how fair use works. Prof. Lessig is using this as an example of why “Fair Use” is clearly broken. Why SHOULD Mr Knopfler be able (legally) to suppress this amateur’s very powerful political message?

    I see it differently, and I humbly offer it to you for consideration. Mr Knopfler created a piece of popular music, he has profited from his efforts to popularize it, and he deserves his past, current, and future compensation for it. In exchange for the copyright monopoly, he must give something of value back to the society which supports him. I say the thing of value we must demand of him is if he makes his music so good, and so powerful, that it is evocative even to those such as Prof. Lessig and myself who have trouble recognizing his name, then his music has passed into the Cultural Commons.

    I don’t mean to overstate what is lost here. It’s not that Mr. Knopfler loses his copyright. If there is money to be made, by all means, Mr. Knopfler should get his cut. But this video was not made for money (I’d guess), and for us to consider a “fair use” doctrine with the framework of copyright law that give Mr. Knopfler the ability to suppress this political message, I truly believe is a mistake.

    Going back to the existing framework of “fair use”, perhaps you can consider more than how much of each song was included in the video. Try thinking about how much of the video each song makes. If you take all the other content out, do you have the video? If you take the music out, is the video fundamentally the same, but perhaps not as effective or powerful? So while I embrace Prof. Lessig’s position that “fair use” is broken, (IANAL!) I can take my understanding of fair use and justify these songs in this video for this purpose.

    And YouTube should be able to get a non-discriminatory, blanket license, to pay off Mr Knopfler. If he is angry at the message, he must create another message. My (weak, IANAL) understanding of free speech is that Mr Knopfler should not, cannot, prevent alternative messages from being expressed in the vernacular of the day. If he has contributed to that vernacular, he no doubt has at his disposal many more effective tools to promote his own message to drown out this other one. Perhaps he can use deception, fast moving headlines, half-truths, and other tried and true methods of under-handedly undercutting a critic.

    Or perhaps, just maybe, we can look past our emotional reaction of public policy debates and look at the facts of debate.

    Thank you for your time reading this blog-entry. Let me emphasize that I don’t know Mr. Knopfler, his political leanings, nor his character. I assume until shown otherwise that he would balk at all underhanded and deceitful techniques to squelch ideas he disagreed with. Of course, in my opinion, that catalogue includes using his copyright on a phonorecording to prevent someone like me from watching something like that video.

    Peace,

    Ben

  • http://brooksider.blogspot.com James Rogers

    Regarding musical satire directed at targets other than the artist behind the song, it seems to me that Mad magazine used to get sued from time to time based upon it’s modified lyrics of popular songs (to be sung to the tune of…). These may not have made it to the appelate level, but I wonder how they were handled. Mad never stopped, so I gahter they took care of it without too much expense.

  • http://www.socialsecuritybullshit.com Steve Baba

    First, I would not at all be surprised is some Obama supporter kid (unaffiliated with any organization) sent the fax to YouTube claiming copyright infringement – in the way that some kids think it’s cool to hack email accounts or hide all the anti-Obama books at bookstores.

    Second, this is a good example of the weakness of remix in conveying useful information.

    Third, aside from monetary considerations for the music, don’t music authors have the right to keep their music from being associated with movements; either that “money for nothing” is for ghetto mortgages or for Wall Street “bailouts.”

  • J

    Ben – Thanks for you thoughtful comments. A few thoughts:

    * I don’t disagree with you that the fair use system is broken (i.e., that there are no clear standards, that it only gives you an affirmative defense once you’ve been sued, etc.). I do think that some of the principles are sound. I don’t think that the commercial/non-commercial distinction is necessarily one of them (as noted below).

    * I guess I disagree that this is a good example of remix/mix up culture since the author is just making wholesale use of existing works to make his work less boring. The music isn’t even used counterpunctually; it just underscores the most obvious points of the video. You write: If you take the music out, is the video fundamentally the same, but perhaps not as effective or powerful? I’d have to answer “yes,” which is why I don’t think that this is a very good use. There’s nothing transformative or particularly original about these uses.

    * That being the case, I don’t disagree with your 6th paragraph, I just don’t think that one of the things that an author gives up in exchange for monopoly is the ability to prevent someone else from appropriating a substantial part of his work in a non-transformative way. (CBS tried this defense when it tried to argue that using MLK’s (copyrighted) “I Have a Dream” speech was transformative simply because they intercut it with some photos from the civil rights movement.)

    * I don’t see the work being by an amateur as being a workable distinction. I haven’t thought a lot about this, but it seems to me calling something amateur isn’t a helpful distinction in an age when I can write a song and have it on YouTube right next to one by the Beatles. In the current media environment, this video could very easily be seen by more people than have heard the #1 song on the Billboard charts. I don’t see amateur/professional use as being more helpful than commercial/non-commercial use, which, as noted above, I don’t think is a helpful inquiry either.

    * Calling this suppressing speech is something of a straw man, I think. Certainly the author should have the right to speech. That doesn’t mean that he should have the right to use my speech to express his message.

    * Again, what it comes down to for me is that when you sync video and music, there is an implicit endorsement of the message. This can be overcome through transformative use. And maybe, in exchange for copyright protection, we do require the author to relinquish a bit of his control over small pieces of the work. (For example, what is the video gaining by using half the song that it wouldn’t get by punctuating key scenes a 4-second clip of the song coming on and announcing “Money for nothing!”?) But I don’t see why an author should have to implicitly endorse a message that he finds distasteful. (For the record, I have no idea of Mark Knopfler’s politics; I’m just using the first example in the video.)

    *This is not simply a reaction to a message that I think is wrong. I thought that the MPAA was wrongheaded when they tried to stop the company that was making the custom DVD players that would skip over the naked & cursing parts. I have no problem with sampling. Sarah Palin can play “Barracuda” at her rallies. This is just a use that crosses the line.

  • http://www.freedomspeaks.com Jason Kiesel

    Where can we download this video? All the link go to YouTube who have obviously taken it down. Thanks!

    Jason Kiesel
    Founder & CEO
    http://www.freedomspeaks.com

  • Ben

    J:

    It’s late, so I’ll be brief:

    * I agree that amateur/professional isn’t a useful distinction under the law. To be frank I’m not concerned with the professionals: they will find a way, even if it isn’t the way I’d think they’d really want it (like the pop music scene today). But (and I don’t know if this is the right assumption for this particular video) if this is just some guy who got all exercised because he thinks he knows what happened and cut it together… well I think that is important to protect and encourage.

    * And the way I see it, the music doesn’t carry the message of the video, so the music is oh-so-more obviously transformed by its inclusion into the mash-up. Those collages I made in kindergarten with magazines and scissors didn’t change anything in any of the pictures as printed (I didn’t draw on mine), yet I would claim that my work transformed all the constituent parts.

    * You suggest that free speech doesn’t mean I get to use your speech to say it. I disagree. I can quote you (the generic you) to criticize your intent; equally fair, I can quote you (verbatim) to emphasize and enforce your intent. What I shouldn’t do is simply copy what you did, and add nothing of my own, (roll no credits, give no citations?).

    I think this last point highlights where we differ. We are using different standards for whether the use of this music in this video should be “fair use”. You say it’s not transformative (at all?); I say it is (in the context of the video). I think pop culture (or even “cult-classics” that are widely known among a small community) creates a vernacular, a language. And if you (generic) create some pop (or cult-) culture that becomes part of the vernacular, you’ve gained something big, but I think you (should) lose something too. If you invent a word, popularize it, make it part of the language, then you can’t forbid me to say it. Go google something to see what I mean. ;-)

    That was supposed to be brief… so I’m only going to do a very quick preview. Apologies for typos and grammatical errors… I’m tired here in British Summer Time

  • Rick

    0:00 – 2:47 (2:47) “Money For Nothing” – Dire Straights
    2:48 – 3:42 (0:54) “Free Falling” – sounds Matthews’y but pretty sure it’s John Mayer live
    3:43 – 4:15 (0:32) “Burning Down The House” – Talking Heads
    4:16 – 5:16 (1:00) “Holding Out For a Hero” – Bonnie Tyler
    5:17 – 7:26 (2:09) “Money Talks” – AC/DC
    7:27 – 9:57 (2:30) this one’s killing me – gotta be U2 but I can’t nail it down – Help somebody!
    9:58 – 10:59 (1:01) “Eye of The Tiger” – Survivor

    (Times are pretty close but probably not to the gnat’s behind.)

    It’s a totally wild guess as to whether an artist would object to use of his work in any particular situation. Moot point anyway since the RIAA would likely be the ones raising the stink.
    Well, okay, if the Wall Street demonstrators had Neil Young’s “Let’s Impeach the President” at 120db in the background my bet is he’d likely be all for it.
    “Fair use” seems to me to be stretched a bit with these playing times. And I say that as a staunch supporter of your copyright views. Fact is, I didn’t care much for the piece artistically. Nearly eleven minutes is just too long for most folks to hang in there for something like this. In my view five minutes or less and songs in shorter segments with ascending “punch” through the piece would be more effective and more in keeping with the (admittedly subjective) fair use principle.
    As to the content: Yep; no doubt it’s all the fault of Carter, Clinton, Obama and the Dem’s. Respect for normal moral and ethical standards is hardly to be expected from any of the financial corporations involved. Indeed, they were bound by law (the creator asserts) to run themselves (that’s company-selves, not personal-selves) and the country into the ground so that we could all have homes. How could Bush have known? The neo-cons were too busy raping us in Iraq. The Treasury Dept? The Fed? How could they have possibly known that something was afoot before a few weeks ago? Yep it’s those damned Democrats alright.
    And, moreover, we should definitely entrust our foreign policy to Palin. You can’t see Russia from Illinois.
    Sorry for the facetious posture. I’m actually just as pissed at the Dems as I am at the Reps. We gave them the keys to the American car in 2006 but they have no clue where to go. It sure sounded like they had a road map; guess we should have given them GPS. This time we’ll need to ride shotgun with them (with the shotgun).
    As an independent it’s really pretty simple for me right now: Republicans caught inside the beltway should be shot on sight; Democrats (for now) get a running start.
    BTW: Since Lessig has become corrupt, or confused, or perhaps just overworked :) I’ve been looking for other heroes. Fortunately Andrew Bacevich has arrived. Check out the book, “The Limits of Power”. And for a glimpse of the man himself check out Bill Moyer’s interview with him (Miro or PBS podcast). I think the man articulates the American gut at the moment better than any other living soul.

  • http://slashdot.org/~twitter/journal/177855 twitter

    How can you be sure this was an amateur effort and not the product of some PR firm? Would that make a difference?

  • http://www.socialsecuritybullshit.com Steve Baba

    I think Sarah Palin can legally play Barracuda at stadiums because the stadiums are paying blanket licenses to play music. Even then if the singer (Pat Benatar?) objects, politicians usually then respect their wishes, although I don’t know if they are legally required to do so.

    I don’t remix so this is not a rhetorical question, but isn’t there plenty of public domain or “creative commons” songs containing something like “free money,” “easy money” or “money for nothing,” that one could use for remixes?

    Of course the free songs are not likely to be as well known as the commercial songs.

  • Nate

    I think that lost in this debate is the original intent of copyright. That is, when lawmakers first decided to craft legislation protecting copyrights, patents, etc, what did they have in mind? Why copyright anything? Why introduce a system that protects the creator of music, literature, or what ever at all?

    It has everything to do with money. And that’s fine. Having copyright and patent protection in place has allowed western economies to grow faster and create new technologies more efficiently than anywhere else on the planet. There would be little to no creation if the would-be creator had no incentive to market his invention, or his artwork.

    Money is where copyright began and money should be where the line ends. If a video like this is made with no intention of profit or financial gain, then the creator of the music should have no control over it. Period. The creator has monopoly power over the ability to SELL his work, not total authority over where and when it is used.

    When an artist releases a song, he has submitted it to society to be freely played and used, just the same way that when we say something in public, we can now be quoted and our words repeated. As one of the earlier posters alluded to, the tradeoff for the artist is that he makes money, but in turn, has to accpet that his work is now fair game in society. He can create a song, but once he puts it out there, he can’t control who buys it, who listens to it, or who uses it in a non-commercial setting.

    Can you imagine what the world would be like if the creator of every original thought had monopoly power over how others interpretted it or referenced it? If I walk outside tomorrow and declare, “It looks like it will rain today,” should I have any control over how people decide to use my advice? Should I be able to say that I said it first, and therefore, nobody else can use my statement without my consent? No, of course not. Once an idea is submitted to the public, the public should be free to use it however they choose. If they go around repeating, “I hear it’s going to rain today,” based on my statement, there’s nothing I should be able to do about it.

    If one wants to have complete control over his thoughts and ideas and works of art, then he should keep them in his head. Discussion of copyright should begin and end with financial gain in mind.

  • EricD

    A video not made for profit can still impact the copyright holder financially. Take it to an extreme and image the same song used in every remix video. Everyone would quickly tire of the song and the copyright holder would not be able to make any money from its use. Doesn’t the copyright holder have the right to protect his work from over use?

  • http://www.youtube.com/themouthpeace amy

    Burning Down The House: What Caused Our Economic Crisis?

    A must watch video. Pass along…

    There are 2 links here as I’ve seen this video pulled already from some links.

    http://www.youtube.com/themouthpeace

    http://www.youtube.com/watch?v=1RZVw3no2A4&feature=iv&annotation_id=event_597487

  • J

    Drive-by followups:

    * Ben: What I shouldn’t do is simply copy what you did, and add nothing of my own, (roll no credits, give no citations?). You’re right, this is where we differ, so I guess this is just where we agree to disagree. I suppose that I just demand more creativity from the remixer, that she use the original in a new and creative way. I don’t think that simply putting the music up against a slide show transforms the original in any way that adds to the culture or the common creative vernacular. If you’re going to do something like this, you better be selective with your use of the original, which this author was not (except, maybe, with burning down the house).

    * Twitter: You’re right, we can’t know, which is why I don’t find the amateur/professional distinction very helpful.

  • http://ejnorman.blogspot.com Eric Norman

    So if YouTube is responsible because they profit from such works, then YouTube will be doing a lot more censoring of submitted works. Are you sure this is what you want?

  • http://samgreenfield.com/log Sam Greenfield

    @Nate: “When an artist releases a song, he has submitted it to society to be freely played and used, just the same way that when we say something in public, we can now be quoted and our words repeated.”

    When artists perform or publish song, they are not “submitting it to society” for free. One of the main purposes of copyright is to allow artists to publish works without fear that they will lose rights to those works. And, in fact, you are incorrect about being able to freely quote someone’s speech. When people make speeches, they are protected under copyright as well. For example, consider J’s point about MLK versus CBS; see http://en.wikipedia.org/wiki/Estate_of_Martin_Luther_King,_Jr.,_Inc._v._CBS,_Inc. Portions of a public speech may be quoted under fair use provisions. The reason why so many speeches are published in their entirety without more copyright lawsuits is that most people making speeches want their ideas to receive large circulation.

    I’m curious where the line between commercial and personal is drawn. I have a very small 1″x1″ advertisement on my blog. Does that make my blog commercial? This blog has no external advertising, but hosts and links to many works that are commercial in nature. Is this blog commercial? In fact, the only reason I visited the blog rather than reading it via Bloglines is so that I could view the video. Does that not give the video a commercial value?

    @Lessig: “This is an amateur remix of popular culture. It should be completely exempt from copyright restrictions.”

    The problem I have with this statement is that there is no true “amateur” when it comes to content creation. For example, several authors I know are not making a living writing. Are they amateur, and should they then legally be able to plagiarize? It may be fine for a garage band to cover songs of other artists for no money, but what happens when they make it big? Should a student film be able to use any content without paying licensing fees? When do you stop being a student?

    The fact it, a blank statement like, “It should be completely exempt from copyright restrictions,” is exactly why makes artists, writers, and musicians very leery of remix proposals. They know, better than anyone else, that the distinction between “amateur” and professional is dubious at best, and also know that there are unscrupulous people who will take advantage of this distinction for profit.

    All that being said, amateur usage of music, art, and videos is already generally allowed. A small band is not charged royalty fees for performing in small venues when they cover a song. A person making their own artwork at home has no restrictions on what they create or how they copy. And, if the video discussed above was just shared with a person’s friends and family, no one would have cared that it used commercial music.

    In this specific case, I have no idea who TheMouthPiece represents. Is it an advertising agency or a political group rather than an amateur? And in YouTube’s defense, why should YouTube pay commercial fees to license content when they can simply drop the content that would cost them money? YouTube is running a free service, and nothing is stopping TheMouthPiece from self-hosting the new work.

  • Shinju

    I think part of the problem is actually a fault on the media companies for rejecting the medium of mixups as a whole. Whilst its possible to pay for permission to use a song if you are a very large company such as the BBC and want to put, say “Money for Nothing” as a sound track to one of your adverts, there’s simply no mechanism for the average person of the street to work out a similar negotiation for their own not for profit video of their son’s Sports Day (say) which they decide to put up on Youtube.

    It really is a case of the media companies simply being far to far behind the times. It could be simply solved hy them asking for micro payments for use of a song, it could be a tiny amount of money with the sheer volume of video going up on the net these days and they’d make a fortune, but because they are operating on a very hostile basis against any use of their music which falls outside their view of what people are ‘supposed’ to use music for (i.e. Listening to it as opposed to using it creatively) they simply don’t see the potential of working together with people.

  • Keith Irwin

    The speech involved in this video is political speech, precisely the type of speech that the first amendment was most primarily concerned with protecting. The case law on copyright, as it exists now, assumes that you can protect the expression of ideas while also strongly restricting the means of expressing them. I believe that is a false dichotomy. Ideas cannot be separated from their expression and when you restrict that expression, you are muting speech. In any case where the first amendment and copyright come into conflict, it is the first amendment which should triumph. I believe this both because amendments to the constitution should always trump what came before them (otherwise amending it becomes non-functional) but also, and more importantly, because free speech is a fundamental liberty of a free and functioning society and copyright is simply a useful law to promote the arts.

  • http://jennylens.com Jenny Lens

    The creator OWNS his/her creation. These words/music would not exist if not for them. If Tom Petty or others object to their music and/or lyrics being used for political or other means which contradict their beliefs, that is their right. How dare you say they have been compensated and have no voice in the matter? How much compensation is enough when an artist’s work is being used in ways that disgust the artist?

    The whole point of copyright law was to protect the creators so that they could continue to create art in all its forms. People like you, heartless and selfish, make me sick. I am a photographer and my work has been stolen from major corporations to kids on myspace (and yes, youtube) for 32 years, People think I’m rich and famous because they see my photos everywhere. I tell them IF only I were paid for all usage!

    People simply refuse to believe that I have rights as the creator of these works. These lyricists/composers have rights. And when they give up those rights, it makes it harder for the majority of artists who don’t have the visibility, the money, the legal teams to protect our creations. They are standing up for ALL artists, all the people who enrich our lives with music, lyrics, stories, photos, paintings, movies, etc.

    YOU make it harder for artists to continue to create. You should be ashamed of yourself!

  • http://www.socialsecuritybullshit.com Steve Baba

    I am still a bit dismayed as why you “free culture” types don’t tell the remixer just to use the “free” creative commons or public domain works out there.

    But a major flaw with Lessig’s argument is that moving the line (between legal and nonlegal) use is NOT the same as eliminating the line (total deregulation).

    Lessig, of course, does not advocate piracy, either for financial purposes (for sale) or for noncommercial amateur purposes (just giving a copies out for free online).

    If all one has to do is paste “VOTE” (political speech) on a video with a song to qualify as an “amateur remix,” free to copy all music, every amateur/unpaid pirate in the world will do so. Assuming Lessig would agree this should be illegal – the question than becomes where to draw the line, the ever difficult fair use question.

  • cp1919

    seems to me that some of the complaint of a remixed artist drifts out into the area of “dilution of trademark” (which as IANAL I am using as more a metaphor than a legal construct). Since (as argued) Mr. Knopfler’s music is *being associated* with a concept which he may be opposed to, it is to a certain extent implying support, and thereby diluting any message which he may have intended to the associated with his work. Now he could be completely a-political, but the association may also *commercially* harm his brand (or possibly aid it). But as I understand it, you have to be diligent in protecting your trademark to support a dilution claim. If Mr. Knopfler consistently objects to his music being used to support certain messages, can he be given legal recourse to forcibly exercise it?

    I think fair use of music (and probably images) is harder to manage in this case than text, since the usage can be evocative rather than deliberative. The emotional associativity then becomes harder to disentangle and therefore must be more carefully managed.

    But remix is all about redirecting messages anyway, so I don’t know that there’s much viability in saying that “corrupting” a message is a violation.

    What recourse should Mr. Knopfler have? Beats me, obviously; I’m not even coherent in a single post. I would think that a nice note saying “please don’t use my work” would be sufficient to get me to take down *my* remix, but I know that there has to be some kind of legal framework.

  • Ben

    @Sam and Jenny and others

    It is funny in a quite sad way to see so many people repeat as fact “Copyright was created to protect authors and artists” especially on this blog. This blog is Lawrence Lessig’s blog, a man who has worked very hard on many things, including trying to dispel this myth. I should note that I do not speak for Prof. Lessig, nor do have any deeper insight into his mind than an ordinary person who has read some of what he has written. It is his writings, particularly his book “Free Culture” which is freely readable in its entirety from a link on his home page.

    The point of copyright law, (see “Free Culture” page 131) as I understand Prof. Lessig’s writings, and the US Constitution, is to promote the public good (“Progress of Science and useful Arts”). The history of copyright law includes times when wresting control of copyright was a struggle between parliament and crown. Perhaps today it is a struggle between Congress and SCOTUS, as well as a struggle in society between industry groups and ordinary consumers of music, movies, and video games.

    Copyright law does not have primary purpose of protecting artists. Perhaps protecting artists is a useful way of promoting the public good but today I feel that artists receive a bit too much protection and the public good is suffering because of it.

    The example I can recall most easily for “too much protection for artists” causing “the public good” to suffer is the copyright extension that Prof. Lessig argued against in front of SCOTUS. (*(need reference )*) When the public good is harmed, Congress is unconstitutionally overreaching its power to create copyrights.

    Of course it is a difficult judgement to assess whether “the public good” is harmed! Publishing houses, record labels, movie studios and the like (who have copyright on, but not authorship of) content are part of the public and good things that happen to them are a “public good”. I do not mean to imply that anything good for RIAA should be counted as bad for the public. Anything good for the RIAA should be counted as GOOD for the public. But the RIAA is not the entire public(!!!) and if that good thing for the RIAA is inseparable from a bad for me, then remember to count both parts.

    @J:

    We can agree to disagree…but after rereading, I think we really agree. I thought at first you felt that content creators should be able to say whether their song (in this case) could be used *at all* in support of a political view they disagreed with. But you said that the artist might be pretty cheesed if they used *half* of a song. I would be happy to accept as a compromise that this video using this music isn’t “fair” if only because they used too much, and the video makers could have used, say the chorus, or title lyric, of each of these songs to emphasize their point. We might get into an argument about how “artistic” the use is, and I think we’ve had that already. But I’ll happily lose that argument if I win on the point that the artist can’t say ‘no-not at all’ just because they don’t like the message. I guess I’m in favor of what Prof. Lessig called “statutory licenses” in the book I referenced above: “Free Culture”.

    Of course, J, if you think that my collage from kindergarten isn’t transformative enough simply because I didn’t make any kind of change in the original pictures, I’m not happy to lose the ‘artistic’ argument. If you think this video creator didn’t change the music at all, he just ‘clipped it’ so there is zero opportunity for enough artistry, then again, I am not happy to lose the artistic argument. If you just think he took too much, since you agree the lack of clear guidelines is a problem, then you and I are on the same side. I would promote this example as a good use, you would not, but I truly believe that we could find a compromise that would satisfy us both.

    Cheers!

    Ben

  • JV

    Whether or not the original artist would like to permit the video or not is of little consequence in my opinion.

    Already under the current laws, many TV or radio stations and the like have paid for some kind of a blanket license covering their use of copyrighted music. At least one of the songs on that video, Money for Nothing, has been playing on the background of news relating to the subprime crisis and the bailout plan. I doubt Dire Straits was asked for permission – the blanket license should cover it regardless of what political message the news item might seem to convey.

    The problem with amateur videos is, there is no personal blanket license to be bought. For that reason the only realistic way to use copyrighted material under the current laws is through fair use and that use should be protected.

  • http://peacelovesmusings.blogspot.com PeaceLove

    The video is quite dishonest, as it tries to paint Obama as corrupt and McCain a lily-white peoples’ hero. In fact, they’re both corrupt.

    I’m surprised the video made no mention of Obama’s inextricable ties to Penny Pritzker, billionaire subprime mortgage queen. I’m not surprised they left out McCain’s extensive ties to “Foreclosure Phil” Gramm and other scumbags.

    Anyone expecting fundamental change from either of these two is probably delusional. When Obama committed an act of treason by signing the FISA bill, I knew the jig was up.

    On topic, the use of pop music in non-commercial works is growing rapidly and should of course be fully permissible under the terms of Fair Use.

  • http://samgreenfield.com/log Sam Greenfield

    @Ben: “It is funny in a quite sad way to see so many people repeat as fact “Copyright was created to protect authors and artists” especially on this blog. [...]

    The point of copyright law, (see ‘Free Culture’ page 131) as I understand Prof. Lessig’s writings, and the US Constitution, is to promote the public good (‘Progress of Science and useful Arts’).”

    Ben, I am not necessarily disagreeing with “Free Culture,” and you are correct that the page of “Free Culture” you quote does discuss the promotion of the public good. However, if you look at Page 130, just prior to the discussion of the “promotion” clause, you can see that the method of promoting the public good is “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [U.S. Constitution, as per "Free Culture" p. 130.] I read this as giving Congress the authority to grant rights to authors and inventors. There is also historical precedent that one of the reasons why copyright was created was to protect authors and artists.

    Whether or not these rights should be transferable, how they apply to derivative works, and what the lengths of a copyright should be are all different arguments. I strongly agree with arguments regarding limiting the length of copyrights and loosening the restrictions against transformative works. I am especially concerned about the hijacking of copyrights by large media conglomerates.

    @Ben: “Why SHOULD Mr Knopfler be able (legally) to suppress this amateur’s very powerful political message?”

    Knopfler should not and does not have the right to suppress anyone’s speech. However, under current copyright law, Knopfler does have limited rights to control how his creations are used. Making a statement that you cannot re-appropriate my works in their entirety is not the same as stating that you cannot make your message.

    The use of the music in the video does not appear to be transformative nor is it even clear that it is amateur. And I am still curious about the definition of “non-commercial.” If a non-commercial work is shown on a commercial website that displays advertisements, is the original work still non-commercial? What if there is a secondary benefit from displaying the video, like boosting site traffic or book sales?

  • Ben

    @Sam

    Yes, I do agree with protecting artists and authors and publishers; I also agree that protecting publishers is Constitutionally mandated. Sometimes, I do have to remind myself that publishers (esp. large media conglomerates) are part of the public, and economic goodness for them counts as “public good”. But I find that emphasizing the method (security exclusive rights for a limited time) over the purpose (promoting science and useful arts) allows the few people around me (still willing to talk to me about this :-) to ignore the harm done to the public. It also promotes the mistaken idea that copyright holders have an inalienable right to their creative works as if ‘content’ were ‘property’.

    In my mind, if someone agrees in principle that copyrights should expire eventually, then (in principle) that person believes that copyrights are not inalienable; in other words ‘content’ is not ‘property’ The difference with ‘true inalienable rights’ and real* property is stark. The state may not deprive me of my real property or my life or my liberty without due process. Copyright and patents may be removed by simply (smirk) passing a law in Congress. You could imagine the howls of protest if all copyrights on everything currently published were suddenly curtailed to 14 years, with no grandfathering clause. I would not recommend such a change, but I don’t see any legal recourse to the offended; only a political one. Similarly, when my right to perform, view, or extend (all rights controlled by copyright) a work is suddenly curtailed, there are some muffled cries, but no (successful) legal recourse.

    I do see people arguing from the perspective of ‘protect the artist!’ as if it were the point of copyright, and I feel strong disagreement. More than that, I want to show people who believe protecting the artist is important, that they should stand against copyrights as they are today. It’s a bit of a digression here, but I believe that copyrights only protect publishers, never artists. The only benefit an artist gains from their content under copyright law is when it is sold to a publisher (or the artist switches hats and becomes a publisher ‘themself’). Perhaps some ‘artists’ like the idea of controlling other people; denying them opportunities to react to the ‘content’ that surrounds them. Copyright allows this, but I believe an entity engaging is this kind of behavior is no long acting in a creative way, no longer acting as an artist. Instead they are acting as a publisher, as a venue, charging admission for entry, but barring any creative reaction to the original.

    So with those beliefs and with the will to listen and respond, I hope to change peoples’ minds, even if it is only a little bit, or only for a short time.

    Peace,

    Ben

    *I don’t mean ‘real property’ to mean land here, just in contrast to so-called ‘intellectual’ or ‘imaginary’ property

  • http://www.socialsecuritybullshit.com Steve Baba

    In addition to taking money from professional musicians, by not using the “free culture” or public domain works – you are taking publicity or viral marketing from second-string musicians who want publicity to become popular.

    Lessig’s argument seems more like arguing from a conclusion, free is good, backwards. A serious argument would weigh the costs and benefits of all, not assert brokenness.

  • Dan Maloy

    Does anybody know the music used in the newer versions of this youtube video? I’m particularly interested in the first 3 pieces; the ones that are classical / club style up to about 7:30.

    It sounds a LOT like a group called “Bond” but I’ve listened to all their album clips on iTunes and haven’t found any that sound like these.

    Any help?