Soon it may be off limits to remix anything with snippets of our shared mass media culture
While I respect the EFF in a lot of ways, there has never been a "remix snippets of our shared mass media culture" exception to copyright.
An equally fair way to phrase the phenomenon is "include high or perfect fidelity copies of copyrighted work in derivative works", which is activity that our copyright regime is not exactly neutral about. I mean, there are credible arguments to be made that the DMCA has been abused in some cases. Then there's the argument that you should be able to take the entirety of a song to back a video you made, and this is OK because the video is yours. (The EFF regarding the machinima videos.)
As a positive statement of US copyright law rather than a normative statement, that is infringement (absent permission, etc).
If you want to fight for creating a "you're so popular you have cultural impact which makes you fair game for derivative works" exemption, be my guest, but I'm not weeping overly hard for losing something I know I never had.
You're right that the law has never allowed for things such a mix tapes or remixes, it's pretty black and white about that. But really, how far does this go?
The article mentions that people singing popular songs on YouTube are being censored as well. Who exactly is benefiting from this? Would I be any less likely to purchase the real song because I heard a teenager's lame cover on YouTube?
I think we need to have a good look at fair use and what it means in this day and age.
I disagree with your assertion that there has never been a "remix snippets" exception to copyright. The EFF posting mentions the principle of fair use, developed out of case law at least as old as 1740 [1] and now incorporated into modern statutes [2]. Do you dispute that fair use addresses a "remix snippets" exception to copyright?
I think the issue here is not that the DMCA has been abused, but that it has been circumvented entirely. Under the DMCA, the copyright holder would have to identify relevant works, decide if they think their copyright has been violated, then issue a takedown request (which can later be challenged by the work's author, at which point the work is reinstated and there is a court case).
Under YouTube's scheme, the copyright holder merely hands over a set of audio "signatures" and all works matching them are muted -- even if they may turn out to be fair use. The copyright holder never identifies infringing works directly, and there is presumably no chance to challenge the decision. That's not how the DMCA is supposed to work.
While YouTube's scheme is probably catching mostly copyright violations, it's kind of scary that they have equated "algorithmic signature matches" with "copyright violations". The reason "fair use" is such a gray area is because it's really hard to define what is free speech and what is a copyright violation. Handing the decision to an algorithm isn't a good solution.
I'd love to hear what people think about this statement (from the article):
The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. ... (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what's in the audio track. That's right. I think that adding a soundtrack to your home skateboarding movie is a fair use
I have had several video that fall into this category removed from Facebook (but not YT) for copyright infringement.
Should we (home users) be allowed to use copyrighted tracks as backing audio for our home movies?
(I dont mean 'is it legal today?', I mean, 'should it be legal?')
What if the home movie consists of a completely black frame? Wouldn't a blanket exemption for home movies effectively allow unlimited reproduction and distribution of audio files? For this reason, I think a blanket exemption would involve a radical transformation of copyright.
At least one of Lessig's books point out that the subjective fringes of laws together with the court system provide very useful legal flexibility for problems such as this. No one has described a feasible means of achieving both full automation and justice in a legal system, so it's better for automated enforcement mechanisms to err on the side of liberty and to let mistakes be corrected in the courts.
You can cover any song you like and publish it. Just contact the Song Rights Organisation that deals with that song. ASCAP is one.
I once covered the Outrun theme, and managed to find the guy who composed it, who said go ahead. (When he heard the song, he cut off contact - I guess he didn't like it),
Regardless of how I feel about the current state of copyright law, there's no madness on youtube, simply the following of the law.
There's long held exceptions to copyright, namely parody. Weird Al doesn't have copyright problems (I mean he'd get upwards of 5 lawsuits per song, that's like over 50 cases per album) because he doesn't copy them.
I truly hope I never get busted for pirating, but until the law allows it I'm not going to complain it's absurd if I do. I wouldn't mind a law being passed allowing me to shoot rappers, however I'm not going to complain it's unfair if I get arrested for murder because I took down 50 Cent with a .50 cal rifle!
The law isn't very obtuse on things like this. Everyone posting copies of videos on youtube or videos of them singing it or anything like that, it is illegal even if it is stupid.
While I respect the EFF in a lot of ways, there has never been a "remix snippets of our shared mass media culture" exception to copyright.
An equally fair way to phrase the phenomenon is "include high or perfect fidelity copies of copyrighted work in derivative works", which is activity that our copyright regime is not exactly neutral about. I mean, there are credible arguments to be made that the DMCA has been abused in some cases. Then there's the argument that you should be able to take the entirety of a song to back a video you made, and this is OK because the video is yours. (The EFF regarding the machinima videos.)
As a positive statement of US copyright law rather than a normative statement, that is infringement (absent permission, etc).
If you want to fight for creating a "you're so popular you have cultural impact which makes you fair game for derivative works" exemption, be my guest, but I'm not weeping overly hard for losing something I know I never had.