Protecting Creative Appropriation

I found the selections from Copyright’s Paradox were an especially helpful explanation of the challenges facing copyright law in the digital age. While copyright laws were initially designed to encourage creative output, the Court in recent decades has begun to protect the interests of already existing media providers, like production studios and publishing firms, over the interests of those who wish to borrow from already existing media in order to create something entirely their own. Under the DMCA, intellectual property has in effect been transformed from material that will soon be in the public domain into the perpetual property of its creator. Moreover, new technology enables these owners to protect their intellectual property much more than they were able to in the past, and this is stifling new forms of artistic production.

It seems to me that the underlying issue here is essentially one of scope. When Bronx DJ Kool Herc began mixing together different records at block parties in the seventies, his violation of copyright law was too local for the record companies to take notice, and arguably constituted fair use. Now that the internet is capable of widely distributing any forms of media, however, those companies with the economic incentive and legal ability to object to copyright violations are doing so as much as possible. Even if the violation borders on fair use, these companies are right to be wary. When a mashup artist like Girl Talk combines samples from Shania Twain with the lyrics of especially vulgar rap songs, Twain probably worries that the rehashing of her song will negatively affect her market audience’s perception of her work. And since mashups like this are available for free download to anyone with internet access, I find her concern legitimate.

At the end of class last week, we considered the feasibility of distinguishing between a local public – your family, your town, your state – and a universal public – the one you reach when you post on Twitter or update your Facebook. In terms of copyright law, it might be helpful to refine this distinction further. In the same way that it was not worth the record companies’ time to prosecute Kool Herc for mixing their songs, I believe minor infractions of copyright law should again go unprosecuted. A worthwhile amendment to the DMCA might redefine fair use in terms of the extent of one’s audience. If the audience for a derivative work remained relatively small, say 5% of the audience of the original, copyrighted piece, then the derivative work would be immune from prosecution. Once its audience grew beyond this size, the creator of the derivate work would either have to acquire rights of reproduction or risk prosecution. Such an amendment would protect the so-called “creative appropriation of mass culture” that the authors of Copyright’s Paradox believe is currently being threatened better than the DMCA as it now exists does. This is not an all-encompassing resolution of the problems of copyright in the digital age, but it is a start.

My question for this week is only somewhat relevant to all this. While reading the excerpt from Digital Copyright, I was a little confused by the mention of “actionable reproduction” on pages 91 and 92. Can someone explain what is meant by “actionable reproduction” and what this has to do with RAM and the former employee of MAI Systems? Thanks.