Copyright law seems to be paradoxical. It exists ideally to encourage creativity without fear of the author’s works getting stolen. At the same time, especially considering how much accessibility to technology has grown in the last few years, it discourages certain types of artistic expression for fear of negative legal repercussions. We live in a culture where it is no longer “innocent until proven guilty,” but rather “guilty until proven fair use.” Author Lawrence Lessig uses the term “presumptively illegal” to describe how popular forms of media like remix and mash-ups are perceived (Mandiberg 161). The problem with the ever evolving nature of technology is that the guidelines of the copyright system has to change with it. Copyright law has expanded so much and so many new rules have been put into place that when people create something, especially to be published online, they have to assume that what they are doing is illegal.
An example of one of these internet criminals is Stephanie Lenz. Lenz posted a thirty second video on YouTube featuring her small children dancing to Prince’s “Let’s Go Crazy.” Here’s what it looks like.
The Universal Music Corporation sent YouTube a request to take down the video. They claimed that the video violated their copyright in Prince’s song. YouTube took the video down and contacted Lenz to inform her of her malfeasance. Lenz replied to YouTube stating that her video should be considered fair use and that they should repost it. Six weeks later, the video was back online. Lenz then sued the Universal Music Corporation for misrepresentation and requested that the court acknowledge that her use of the song was “non-infringing.” Universal released a statement saying that they intended to remove all user-generated content from the internet as a matter of principle; the principle being that earlier in the year, Prince stated that he was going to “reclaim his art on the internet.”
The court ruled in favor of Lenz saying that her video could be considered fair use. They also held that copyright owners must consider fair use before sending out take-down requests.
While Lenz won her battle, the case raises a lot of difficult issues. With every invention of new technology, courts have been having to redefine copyright law over and over again. With each redefinition, the laws have become more strict and exclusive. Remix artists like Girl Talk have always had to deal with questions of copyright infringement, but it is getting to the point where mothers can’t post videos of their kids without fear of getting a cease and desist notice. As Lessig points out, this copyright war that has broken out is destined for failure (Mandiberg 168). Technologies will always be advancing and people aren’t going to stop creating, so based on the present model of doing things, copyright law is only going to get more restrictive. So in essence, the more we create, the more we’ll be breaking the law.
Are there solutions to these problems?
Are we headed for another prohibition?