A new service called Legitmix lets remixers make new tracks out of old ones—without relying upon permission or fair use. It could easily boost sales of the original songs used in the mixes. But will it escape being sued?
Let’s get something out of the way: making a mixtape likely infringes copyright. In other words, if I want to give my friend a mix CD that contains her favorite tracks from 2013, I’m making reproductions of copyrighted works. Never mind that it’s basically harmless (and an accepted and celebrated part of our pop culture history), I’d have an uphill battle in court arguing that it’s a fair use. Luckily, today's technology lets me do something remarkably similar without infringing any copyrights.
Sending someone a playlist avoids the infringement problem. After all, a playlist is just a list of tracks; it doesn’t contain any copyrighted content itself. Now that nearly everyone with Internet access can supplement what's already in their library of CDs and mp3s with tracks from online services like Spotify, Rdio, and Google Play. Whereas ten years ago, emailing someone a list of tracks would be a pretty lousy gift (even in comparison to a mix CD), today, the playlist can, with a few clicks, let the recipient play the listed tracks pretty seamlessly.
This is a great example of using technology to do something that was entirely possible before, but too hard to bother with. The laws surrounding me giving a list of songs to someone else are exactly the same as they were; my friend's ability to listen to tracks she owns or has access to in the listed order is exactly the same. So far, so good.
Now, enter a site called Legitmix. The idea behind it is that a remix that uses a number of different existing tracks could simply send the “recipe” for the remix to a user who owns those original tracks already. So if I want to buy a copy of Q-Unit's “We Will Rock You In Da Club” (shockingly, a mashup of “In Da Club” and “We Will Rock You”), and if I owned both the original 50 Cent and Queen tracks, all I'd need is the instructions for my computer to put them together as the remixed version. If I don't have one of the necessary originals, I have to buy the song off of iTunes first to get my mashup (there's a button on Legitmix that lets me do that). This should be a win-win-win. I get to buy a mashup, the mashup artist gets money for his work, and the original artists have also been paid, either because I've just bought one of their tracks or because I bought one in the past.
Hopefully, that's true, and everyone involved recognizes that. Because while their ethics and logic seem rock-solid, the law isn't always completely aligned with ethics or logic. Legitmix says that this is allowable, not under fair use, but under the first sale doctrine, which lets owners of lawful copies distribute and display those copies however they like, without having to get the copyright holder's permission.
But if you're a glass-half-empty sort of lawyer, always looking for the potential liability, you'd be worried that Legitmix might still be sued for infringement. That's because the Copyright Act's first sale section gives copy owners the right to distribute and publicly display copies, but it doesn't necessarily give them the right to “prepare derivative works” of the original tracks. Plus, someone could argue that the remixes, when they exist as final tracks on the user's computer, would be at least partial reproductions of the originals. And the first sale section doesn't get you a reproduction right, either.
But this shouldn't be the case. I've bought those tracks; I should be able to mash them up for my own private enjoyment, either using my own recipe, or the vastly superior one provided by the remix artist. The reason that the law could be at odds with this instinct is that the Copyright Act's language on the first sale doctrine neglects the fact that owners of copies do a lot more than just distribute them. They also modify them, and make private copies of them. I made mix CDs, and before that, mixtapes. I have modified books by taking notes in the margins, and magazines and newspapers by cutting out clippings and assembling them into collages. There are very few cases explicitly ensuring that these are legal uses, even though they pretty clearly should be. We could classify them as fair use, and I think that that's the best way of dealing with it under our current laws, but, as Legitmix indicates, first sale seems like a much better fit for this sort of situation. It’s not just that the work doesn't compete with the original (if this were such a clean-cut fair use case, like some more fleeting samples, or more intricately obscured mashups, it wouldn't matter whether I owned the original tracks or not), it's that I own the things I'm playing with and modifying. I'm not affecting the integrity of the original, I'm jus messing around with the particular copies I happened to buy.
This is one reason that I think the first sale doctrine needs to mean more than just distributing copies of works you own. By owning a record, I control a lot more about it than who I give or sell it to. I control when and how it's played, even to the point of being able to play it alongside other records, with a timing, speed, and volume of my choosing. So why shouldn't I be able to do the same thing digitally?