Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Marco DiLeonardo
Marco DiLeonardo is a sophomore at the University of Pennsylvania studying International Relations.
Copyright is necessary to protect producers, consumers, and artists alike in the genre of Remix. Remix, a cultural variable that serves as a discourse between art, music, and media, consists of sampling, or extracting media from different sources, and mixing them together.  The genre has resulted in numerous legal debates about copyright. Without a doubt, copyright legislation influences the creative process in artists, especially those involved in Remix. The debate rages on both sides, some arguing for additional copyright protection for artists, and others for limited copyright regulation. In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to modernize and adapt copyright into the age of technology.  The act has instituted different regulations and protections specific to the Internet. Despite the efforts to protect the integrity of artists, this act hinders the potential of undiscovered remix artists.
To begin, the DMCA limits the widespread distribution of an artist’s work by defining “fair use.” In the broadest terms, fair use is essentially a legal code to help incorporate previous works into music and other art without having to pay monetary royalties to copyright holders.  Previously, fair use allowed consumers to lend a CD or give away a CD after listening to it under the “first sale doctrine.”  However, in the age of technology, this has changed. To send a digital copy of an album or CD is copyright infringing. The 1998 DMCA is rampant with these inconsistencies with the rest of copyright law. Besides fair use, the “notice and takedown” method is intrinsically flawed.  In theory, the law is supposed to efficiently track and handle the upload of copyrighted materials on different sites. If one notifies the user of his infringement, he should subsequently remove it. In the music industry, this is particularly relevant on YouTube, where users often post the tracks to copyrighted songs. To take these songs down would only limit their circulation. Due to the fact that this provision is largely enforced electronically, the means by which the songs are handled is inconsistent and occasionally faulty. Furthermore, established labels with massive legal teams threaten casual users with lawsuits. These disagreements often result in the back down of the user even if he is protected under fair use in the DMCA.
Next, the DMCA prevents remix artists from effectively creating revolutionary music from previously released singles. Without the Internet and new remixing technology, the 1998 Act would have functioned reasonably well. Remixing did not become widespread until the twenty first century; the law could still theoretically perform. However, the law cannot contend with the digital music industry in 2015. A critical aspect of the music industry is utilizing beats or riffs from released songs to comment or contextualize the work into new music.  DJs attempting to become established in the music industry are severely impaired by the DMCA. With the law devising artificial legal barriers, artists’ creativity is impeded.
Furthermore, the barriers to accessing copyrighted music material are too regulated. According to the DMCA, the consequences of circumventing small provisions are extreme. For example, no one may legally print music without the explicit authorization of the original artist or copyright owner.  If one prints the lyrics that are greater than 10% of a song, the punishment can result into a $500,000 fine and a federal offense.  Furthermore, the DMCA makes it harder for beginning artists to acquire rights of copyrighted songs when creating their own covers of those songs.
Not only does the DMCA affect undiscovered artists most, but it also limits the fundamental right of free speech. Under the guide of “protected knowledge”, the DMCA allows labels among other copyright holders to restrict the immediate release of music, therefore violating the prior restraint clause of the First Amendment.  Copyright holders can further limit what users can do with their work by declaring certain usage rights. This severely reduces the effect of the fair use doctrine. The DMCA is also unsuited to deal with new collaborative art produced on the Internet. While not directly related to music, the decision of AFP V. Daniel Morel shows that the DMCA does not have adequate provisions to decide disputed authorship cases. In this case, Daniel Morel, a professional photographer, posted a photograph from the Dominican earthquake on his Twitter account. Lisandro Suero, another Twitter user, stole his picture and claimed it to be his own, receiving interviews from news sources. Even though Morel eventually won the case after appeal, it initially resulted in the authorship being attributed to Suero, showing that the DMCA alone cannot decide disputed authorship cases. 
Additionally, the DMCA severely hampers the dispersion of copyrighted material to the disabled.  Due to the DRM (Digital Rights Management) restrictions on eBooks and other digital media, users’ ability to adapt material to their needs is hampered. Third party applications used to help the blind navigate web pages or to assist the deaf to view a television show with captions are rendered illegitimate. This is inconsistent with the granted right in copyright law to translate works into different languages, which is essentially the equivalent for disabled persons.
Some may say that under the DMCA, artists are protected from copyright infringement. However, the 1998 DMCA does not protect all artists, specifically those who are undiscovered and not well established. While famous artists would prefer to have their music protected to the utmost degree, upcoming DJs want to have their remixes distributed to as many people as possible. They contend that when utilized properly, the “notice and takedown” method can be a useful tool. Wrongly so, though, and their potential is impeded through the “notice and takedown” method. If a user remixes or mash-ups a copyrighted song in a manner unfavorable to the artist, the artist can send the user a notice to take it down. Apparently, this protection provides an economic incentive to artists. If one creates to make a profit, knowing his work is safeguarded may encourage the artist to produce music. Even for established artists, this means of regulation is largely ineffective and impractical due to the endless copyright infringing songs widespread on the Internet.
While copyright is necessary to protect the rights of artists, it abates the influence of undiscovered artists. The 1998 Digital Millennium Copyright Act attempts and fails to bring copyright law into the 21st century. The DMCA limits the means and extent of sampling and in turn prevents artists from achieving their full innovative potential. The overregulation stifles artists’ access to music for educational purposes. Furthermore, it limits the dispersion and creation of new music and subsequently its impact on society as a whole. The digital law, while providing for fair use, is faulty, inconsistent with other facets of copyright, and violates freedom of speech.
 Eduardo Navas, Remix Theory: The Aesthetics of Sampling, (New York: SpringerWein, 2012), 3.
 Indiana University, “What is the Digital Millennium Copyright Act?,” Indiana University, accessed 15 February 2016, https://kb.iu.edu/d/alik.
 US Copyright Office, “Fair Use,” US Copyright Office, accessed 15 February 2016, http://www.copyright.gov/fls/fl102.html.
 US Department of Justice, “1854 Copyright Infringement- First Sale Doctrine,” US Department of Justice, accessed 15 February 2016, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01854.htm.
 CPIP, “The Failure of the DMCA Notice and Takedown System,” Center for the Protection of Intellectual Property, accessed 15 February 2016, http://cpip.gmu.edu/2013/12/05/the-failure-of-the-dmca-notice-and-takedown-system-2/.
 Capital XTRA, “The Hip-Hop Songs You Didn't Know Were Samples But Really Should,” accessed 15 February 2016, http://www.capitalxtra.com/xplore/lists/famous-hip-hop-samples-loops/.
 Schmitt Music Co., “Your Guide to Copyright Law,” accessed 15 February 2016, http://www.schmittmusic.com/print-media/copyright-guide.php.
 US Department of Justice, ”REPORT OF THE DEPARTMENT OF JUSTICE’S TASK FORCE ON INTELLECTUAL PROPERTY,” accessed 15 February 2016, http://www.justice.gov/sites/default/files/olp/docs/ip_task_force_report.pdf.
 DMCA Knowledge Base, “Protect Your Content,” accessed 17 February 2016, http://www.dmca.com/solutions/.
 David Walker, ”Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires,” Photo District News, accessed 17 February 2016, http://www.pdnonline.com/news/Morel-v-AFP-Copyrig-9598.shtml.
 Kyle Wiens, “E-Book Legal Restrictions Are Screwing Over Blind People,” Wired, accessed 17 February 2016, http://www.wired.com/2014/12/e-books-for-the-blind-should-be-legal/.
Photo Credit: Flickr User AdamChandler86
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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