Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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496 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 Justice George Sutherland, “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” 5 To ensure that the purpose of copyright—”[t]o promote the Progress of Science and useful Arts” 6 —is never varied, we must adhere to Justice Sutherland’s principle when addressing the issue before us. 7 The advent of the digital age has brought many developments in the music industry. Digital sampling 8 is exceedingly prevalent on the scene; 9 in fact, sampling technology that was only available in the studio is now affordable for the everyday consumer. 10 Additionally, the Internet provides unauthorized and unfettered access to nearly the entire history of recorded music to those who seek it. 11 As a result, not only is it now possible to manipulate an infinite collection of copyrighted music, but we must also consider what an ordinary use for copyrighted music is. 12 As this sampling practice becomes more commonplace in the music industry, our notions of “popular music” will also be tested. 13 5. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). 6. U.S. CONST. art. I, § 8, cl. 8. 7. Euclid, 272 U.S. at 387. 8. See discussion infra Part II B. 9. See A. Dean Johnson, Comment, Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 FLA. ST. U. L. REV. 135, 135 (1993) (citing Richard Harrington, The Groove Robbers’ Judgment: Order on ‘Sampling’ Songs May Be Rap Landmark, WASH. POST, Dec. 25, 1991, at D1, D7). 10. See Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 ALB. L.J. SCI. & TECH. 261, 284 (2009). 11. See Emily Harper, Note, Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, 39 HOFSTRA L. REV. 405, 405 (2010) (citing Edward Lee, Developing Copyright Practices for User-Generated Content, J. INTERNET L., July 2009, at 1, 13). 12. See Lawrence Lessig, Free(ing) Culture for Remix, 2004 UTAH L. REV. 961, 968 (2004). 13. Ashtar, supra note 10, at 301 (citing JOANNA DEMERS, STEAL THIS MUSIC: HOW INTELLECTUAL PROPERTY LAW AFFECTS MUSICAL CREATIVITY 8–9 (2006)).
2011] FAIR USE FRAMEWORK 497 “A perfection of means, and confusion of aims, seems to be our main problem.” 14 At the current juncture, “the law is widely dissociated from the social norm.” 15 As this sampling practice becomes more widespread, the disparity between law and practice becomes more apparent. 16 There is such a great discrepancy between what copyright deems legal and what the public demands that our society is considered by some to be “‘a nation of infringers.’” 17 As it is currently applied, copyright law is not suitable for the reality of our time. 18 The digital age in which we live must eventually face the letter of the law. When that time comes, copyright law must stand down and “‘adapt to this new technology, as it has in the past, to foster, rather than inhibit, its benefit to society.’” 19 Our technology has again brought us to that time. “When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” 20 “Yet copyright law has not been amended or adjusted to keep pace with these technological changes.” 21 14. PAUL F. PLOUTZ, GLOBAL WARMING: HANDBOOK OF ECOLOGICAL ISSUES 320 (2011) (quoting Albert Einstein). 15. Megan M. Carpenter, Space Age Love Song: The Mix Tape in a Digital Universe, 11 NEV. L.J. 44, 79 (2010). 16. See Ashtar, supra note 10, at 268. 17. Michael Katz, Recycling Copyright: Survival & Growth in the Remix Age, 13 INTELL. PROP. L. BULL. 21, 40 (2008) (quoting Nate Anderson, Overly-broad Copyright Law has Made USA a “Nation of Infringers,” ARS TECHNICA (Nov. 19, 2007, 1:01 PM), http://arstechnica.com/news.ars/post/20071119-overly-broadcopyright-law-has-made-us-a-nation-of-infringers.html). 18. See Carpenter, supra note 15, at 79. 19. Katz, supra note 17, at 40 (quoting Thomas David Kehoe, How Experts Fail: The Patterns and Situations in Which Experts Are Less Intelligent than Non- Experts, Paradigm Shifts and Profound Stupidity (Aug. 10, 2007), http://www.howexpertsfail.com). 20. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (The “basic purpose” stated is “to stimulate artistic creativity for the general public good.” Id.) (citing Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395–96 (1968)). “[T]his is a statute that was drafted long before the development of the electronic phenomena . . . . We must read the statutory language of 60 years ago in the light of drastic technological change.” Id. (citing Fortnightly Corp., 392 U.S. at 395–96). 21. Katz, supra note 17, at 38.
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Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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