More on DJs, Mix Tapes, and Copyright Law

I’ve got a good friend who’s a DJ (as a hobbyist), and I asked him for his thoughts on the copyright SWAT team story. I thought his comments were worth quoting:

First, the CDs contain recordings of DJ mixes (the story refers to them as “mixtapes”). A DJ mix consists of someone playing records/CDs/DATs and manipulating the inputs so as to produce a continous flow of music distinct from listening to each single sequentially. The manipulation may include scratching, EQing, sampling, drum machines, digital effects, and mash-ups. Therefore, a DJ mix is distinct from merely uploading/burning a folder of mp3s and distributing it. It’s a performance.

However, the performance is built upon copyrighted material from other artists. When a DJ buys a vinyl/CD/mp3 at a record store, he/she purchases the right of personal listening. Many records will say “Unauthorized public performance, broadcasting, and copying of this record prohibited” on the label. When DJs release professional mix CDs through a record label, they obtain legal permission from the copyright holders to include their tracks in the mix. Dance clubs pay annual fees to the two major artist organizations for public performace rights to cover DJs that play at their venue. Record shops that sell unauthorized mixtapes have been prosecuted for copyright violation, so most stores don’t sell them.

The vast majority of mix DJ performances are distributed outside of these legal channels, however. They’re mp3s given away and traded on the internet. The most common are recordings of radio broadcasts. But a number of relatively big name DJs post promotional mixes on their website. These mp3s contain copyrighted content that isn’t authorized for distribution. These mp3s of radio broadcasts and promotional mixes are the way that the vast majority of electronic dance music listeners obtain their content.

The Wikipedia entry on this fully concurs with my understanding of the
legal matters—rarely prosecuted, but not legitimate.

You’ve probably noticed that I [sometimes] post DJ mixes online. I asked an IP lawyer about the copyright status three years ago, and he said that I had a better defense to the degree that I was (a) distributing to a small number of friends and (b) manipulating the sound so that it didn’t match its original form. A “better defense” doesn’t mean it’d be legal.

The most interesting question is whether this event represents a shift in copyright enforcement in regards to DJ mixes. Perhaps in hip-hop, where singles make the industry a lot of money, and DJs aren’t the driving force in sales. But if there were a crackdown on electronic dance music DJs, it’d put a major dent in the industry. Copyright holders gain so much from DJs promoting their content that I doubt they’d try to stop them. While copyright enforcement might gain them a few more sales of their single, it’d drastically reduce the number of people who had ever heard their tune, let alone purchased it. Of course, many producers don’t depend on dance music as their primary source of income, so their relationship to DJs is different than that of hip-hop and rap content creators.

So the RIAA was pretty clearly within its legal rights to prevent the distribution of these mix CDs. However, this also makes it pretty clear that the use of SWAT teams was overkill. This is something of a grey area in copyright law, and a lot of otherwise law-abiding citizens skirt the law to practice a craft they love. The target of the raid was not a shadowy criminal organization–it was a pair well-known artists practicing their craft in broad daylight. While it’s certainly legitimate for the RIAA to assert their rights under the law, it seems wrongheaded to do so by sending in the storm troopers.

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