Steven Levy on Mashups

by on June 25, 2007 · 10 comments

Steven Levy’s column for Newsweek bemoans the trouble that some fellow has gotten himself into, selling mash-ups of hip-hop songs without licensing. Fair use? Transformative use? Why bother with the technicalities? Levy and a legislator likes the fellow, so they weigh in on the side of legislating (yet another) exception. Maybe jam transformative and fair uses together into a whole new category, “rave” use, with a safe harbor for “hipster” use and for the older set “cool” uses? The principle behind it might be that if you offend only a little, you are liable, but if you offend multiple players a lot, you are home free.

The problem of how to license a whole bunch of stuff (167 artists in this case) all at once for a reasonable fee is a daunting one. Not so daunting that one ought not to try. But is proposing yet another exemption or exception or compulsory license or combination thereof really an intelligent approach to the problem? It is not. It is flatly embarrassing that legislators and experienced commentators on copyright cannot do better than this perpetual handing out of legal privileges to the favorite information cause du jour, simultaneously screwing creators and leaving the next innovative


technology who comes along to face the same administrative problem–how to license a whole bunch of stuff.

A real solution would look like this:

-Diagnose the problem. Music copyright is fragmented into multiple rights–the rights in the musical composition and the sound recording, to start–and this complicates licensing. Legislators should start by addressing this fragmentation. If existing technologies (radio, for example) that have grown up around the old models get in the way, grandfather existing stations that can plead economic hardship and move on.

-Don’t mess with liability. Creators do need to work on developing new ways to license. And they are (for example, this new platform for licensing music in games). But if downstream users of copyrighted material are not liable for infringing uses, they have no reason to negotiate. And thus creators know there is no point in creating institutions to help downstream users them. The extent of exceptions from liability so far and the Congressional willingness to hand them out like candy along with compulsory licenses is a big part of the reason that creators have lagged in making licensing easy.

-Instead of complicating the law with bizarre new exceptions, think about how private institutions could support licensing. The Copyright Clearance Center is a prime example.

We really do need to give up on the argument that we like what so-and-so does, therefore he should be able to do it for free, or for some legislatively dictated price. It doesn’t really solve the problem. Ask the webcasters.

  • http://www.techliberation.com/ Tim Lee

    I agree with you that it’s not a good idea to carve out dozens of tiny statutory exceptions to copyright law, so I’m not sure what, if anything, Congress should do here. But isn’t it pretty clear here that in an ideal world a mash-up artist that uses trivial snippets of another artist’s music shouldn’t be required to pay for doing so? Licensing “mash-up rights” is unlikely to ever be a significant source of revenue for artists, yet the logistical overhead of paying is likely to be a significant deterrent from the creation of new mash-ups–even in an ideal world with a streamlined mash-up clearing house. I’m having trouble seeing any policy rationale for requiring payment for sampling trivial portions of copyrighted music.

  • http://www.techliberation.com/ Tim Lee

    I agree with you that it’s not a good idea to carve out dozens of tiny statutory exceptions to copyright law, so I’m not sure what, if anything, Congress should do here. But isn’t it pretty clear here that in an ideal world a mash-up artist that uses trivial snippets of another artist’s music shouldn’t be required to pay for doing so? Licensing “mash-up rights” is unlikely to ever be a significant source of revenue for artists, yet the logistical overhead of paying is likely to be a significant deterrent from the creation of new mash-ups–even in an ideal world with a streamlined mash-up clearing house. I’m having trouble seeing any policy rationale for requiring payment for sampling trivial portions of copyrighted music.

  • http://www.cato.org/people/harper.html Jim Harper

    As to “screwing creators,” it seems worth noting that this is not a conflict between the creators of the original works and some undifferentiated other. It’s a contest between the creators of the original works and the creator of the new work. Whatever its merits in Rube Goldberg terms, this proposal is “screwing” one creator to help another creator.

    The question to me is not so much about administration of the rights but why one creator should be preferred over the other. I suspect, consistent with Tim’s administrative point, that the creators of the original works would have gone ahead with their creations despite the risk of a new work coming into existence thanks to small samples of theirs. (Indeed, the risk is not always of harm, but, sometimes, of being popularized by the later work.) It seems to me that the “conflict” is created by copyright law’s (and copyright practice’s) hostility to sampling, not anything intrinsic to the interests of the creators as creators.

  • http://www.cato.org/people/harper.html Jim Harper

    As to “screwing creators,” it seems worth noting that this is not a conflict between the creators of the original works and some undifferentiated other. It’s a contest between the creators of the original works and the creator of the new work. Whatever its merits in Rube Goldberg terms, this proposal is “screwing” one creator to help another creator.

    The question to me is not so much about administration of the rights but why one creator should be preferred over the other. I suspect, consistent with Tim’s administrative point, that the creators of the original works would have gone ahead with their creations despite the risk of a new work coming into existence thanks to small samples of theirs. (Indeed, the risk is not always of harm, but, sometimes, of being popularized by the later work.) It seems to me that the “conflict” is created by copyright law’s (and copyright practice’s) hostility to sampling, not anything intrinsic to the interests of the creators as creators.

  • http://www.digital-copyright.ca/petition Chris Brand

    Exactly.

    This is simply another example of how copyright tends to protect creators who have already created while disfavouring those who have already created (see also documentary creators and the appropriation art people).

    It’s no coincidence that the people pushing hardest for longer terms and more exclusive rights are those that already hold lots of copyrights rather than those who are trying to decide whether to create a work.

  • http://www.digital-copyright.ca/petition Chris Brand

    Ahem.

    that should of course be :

    while disfavouring those who have yet to create

  • http://www.digital-copyright.ca/petition Chris Brand

    Exactly.

    This is simply another example of how copyright tends to protect creators who have already created while disfavouring those who have already created (see also documentary creators and the appropriation art people).

    It’s no coincidence that the people pushing hardest for longer terms and more exclusive rights are those that already hold lots of copyrights rather than those who are trying to decide whether to create a work.

  • http://www.digital-copyright.ca/petition Chris Brand

    Ahem.

    that should of course be :

    while disfavouring those who have yet to create

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    The following is a misstatement of the dynamics of the copyright discussion: “We really do need to give up on the argument that we like what so-and-so does, therefore he should be able to do it for free”. It appears that those with the power (RIAA) seek to utilize the legislative process to guarantee a revenue stream. Wired reported “The Copyright Arbitration Royalty Panel offered the most compelling evidence that the RIAA used its size and control of music copyrights to force companies to capitulate to its demands. Of the 26 licensing agreements the RIAA struck with webcasters, the panel found that 25 were signed under adverse conditions.”. Doesn’t sound like a free market is in operation.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    The following is a misstatement of the dynamics of the copyright discussion: “We really do need to give up on the argument that we like what so-and-so does, therefore he should be able to do it for free”. It appears that those with the power (RIAA) seek to utilize the legislative process to guarantee a revenue stream. Wired reported “The Copyright Arbitration Royalty Panel offered the most compelling evidence that the RIAA used its size and control of music copyrights to force companies to capitulate to its demands. Of the 26 licensing agreements the RIAA struck with webcasters, the panel found that 25 were signed under adverse conditions.”. Doesn’t sound like a free market is in operation.

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