If there’s one concept that has suffered more damage than just about anything else as a result of the web and the ongoing explosion of digital media, it’s copyright: the idea that a content creator should have virtually unlimited control over his or her creation, regardless of what form it takes. As blogger Andy Baio notes in a recent post, the principle behind copyright has been taking a beating from “remix culture,” driven in large part by YouTube and other video sites. Is the rise of the YouTube generation changing the way we think about copyright — and if so, should we let that happen? Do we even have a choice?
Baio, a long-time digital journalist who blogs at Waxy.org and is also a former CTO of Kickstarter and a staffer at Expert Labs, notes that a huge number of the users who post mashups and other video interpretations of popular music to YouTube seem to have only a hazy idea of what copyright is, or how it’s applied to works like the ones they are uploading. As he notes, there are close to a million videos on the site that contain phrases like “no copyright infringement intended” or invoke the “fair use” clause in U.S. copyright legislation. In the vast majority of cases, these videos are probably illegal under the current law.
If YouTube uploads are illegal, is the law wrong?
Saying things like “No copyright infringement — I only put this up as a project” (as one video uploader did when they posted a version of the movie Pulp Fiction reassembled into chronological order) has no real legal force or effect, as Baio points out. Whether fair-use principles would apply to these kinds of creations is a more difficult question to answer, since the definition of fair use is notoriously complex. The courts use the so-called “four factors” test, which assesses the nature of the re-use, the intent of the new work and the impact that it has on the original. But as Baio notes:
Under current copyright law, nearly every cover song on YouTube is technically illegal. Every fan-made music video, every mashup album, every supercut, every fanfic story? Quite probably illegal, though largely untested in court.
There are a number of ways of looking at this kind of activity: if you are a copyright holder or a lawyer or an organization like the Motion Picture Association of America, you can see it as theft, pure and simple — and you can file thousands of takedown notices under the Digital Millennium Copyright Act (including some fairly absurd cases where music appears in the background of a video), or push for even more regressive and punitive legislation like the proposed Stop Online Piracy Act, which would allow you to remove websites from the Internet permanently, among other things.
At some level, however, this approach arguably turns into self-defeating strategy for the media and content industries. I think Baio is right when he suggests that the “remix culture” that many of these YouTube users identify with is actually changing the way that an entire generation thinks about copyright, for better or worse (and I would argue it is for the better). For them, the “fair use” principle is far broader than the courts would probably define it — and who is to say that they are wrong? Says Baio:
No amount of lawsuits or legal threats will change the fact that this behavior is considered normal — I’d wager the vast majority of people under 25 see nothing wrong with non-commercial sharing and remixing, or think it’s legal already.
Remix culture is becoming the norm
As I’ve pointed out before, my teenaged and older daughters experience popular media of all kinds through remixes of some sort or other. Whether it’s a TV show like Doctor Who or Glee, or a popular song, or a movie like the Twilight series, they are almost constantly sharing remixes, mashups, parodies and other references through social platforms like YouTube and Facebook and Tumblr. Almost every one of these is probably illegal (although some might be covered by fair use if they ever went to court).
Should all of this content be removed from the Internet or the uploaders and creators of mashups be prosecuted? That’s the traditional media industry’s response, but I think it is incredibly short-sighted. If you are a modern media company, you should want your content to be shared and remixed in this way. In fact, you should be making it easier for this to happen, not harder. That kind of sharing is how content is distributed now.
I think Baio (who has had his own run-ins with copyright holders over a mashup he created) has a point when he argues that remix culture is “the new Prohibition,” with media companies fighting a losing battle against behavior that a growing proportion of the population thinks is perfectly fine. And he also points out that most of the YouTube generation are now old enough to vote, and could soon start being elected to office. Will that start to change the way that we look at copyright for good?