I wrote a post the other day criticizing the RIAA for failing to understand 21st marketing techniques. The night I wrote the RIAA post, I listened to an interview on Fresh Air with author and Stanford Law professor Lawrence Lessig, who recently published a book called Remix, and he articulated many of the ideas I was trying to convey in my post.

There is a bright line of ownership, Lessig says. We can not simply share a song with 10,000 people on a P2P network, but we should be able to use that song in a non-commercial creative work without fear of incurring the wrath of the RIAA (and other powerful organizations).

Back to YouTube

In my post the other day, I complained about the fact that Warner Music Group had ordered some cell phone videos of the December, 2007 Led Zeppelin reunion concert taken down from YouTube and I referenced David Meerman's Scott February 2008 EContent column suggesting that WMG was missing a golden marketing opportunity by forcing strict adherence to copyright law. Lessig brings up another YouTube example, actually more absurd than mine.

In this one a mother took some video of her 13 month old dancing to a Prince song. The mom uploaded the video to YouTube and Lessig says, that Universal Music contacted YouTube and told them to take down the video because this Mom was violating the law by playing this song in the background of this video without permission.

Lessig says that sharing and mixxing songs like this in a completely non-commercial way ought to be protected under fair use policies and I agree with him.

But YouTube is Commercial Isn't It?

One point that a commenter with whom I had a lengthy exchange, made in my RIAA post from the other day was that YouTube is a commercial entity. Even though WMG or any artist or recording company may make money indirectly, isn't Google, the owner of YouTube making money off the back of these videos? This is a harder question to answer. Today, YouTube remains mostly commercial free, but given what Google paid for it ($1.6B), and the way Google has always made most of its money through advertising, that is likely to change at some point.

In a case like the one cited above, Google is providing the tools to display this video and the server space to store it. In exchange, the Mom gets to post it and share it with her friends (and anyone else who wants to see it). It's a symbiotic relationship. When commercial questions come into play it's more complicated. As a commercial entity you need to weigh the cost/benefit of keeping the video up there versus ordering it down. If as, David Meerman Scott suggests, it could drive sales of your product, isn't it worth it to leave it up there and see what happens? In cases, like this Mom, it's just crazy to order it down. There is no question of money changing hands.

ASCAP for the Internet

One way around this is to have a pool of money generated by fees in a similar fashion to ASCAP and BMI. If you play commercial music in your coffee shop, you need to pay yearly fee for that privilege. Lessig suggests a couple of similar models.

One is put forth by the Electronic Frontier Foundation called the Collective License. So long as you buy this license and pay a small yearly fee (multiplied by millions of people presumably), you can use songs in a non-commercial manner without fear of prosecution. The money would be distributed based on how often the song is used to compensate the artist in a fair way. In a second model, described by Lessig, the P2P networks and ISPs would pay a fee or tax for non-commercial use that would go into a pool in a similar fashion to the EFF's idea.

This is a complex and difficult problem, but it seems clear to me at least, that Lessig is starting a necessary conversation to move the issue of copyright forward to cover 21st century content use. I want to make clear that I don't in any way sanction stealing somebody's content. As a writer, I understand my intellectual property is how I make my living, but I also understand that there should be clear lines where the ownership stops and fair use begins and we need to update the laws to decriminalize the non-commercial sharing of content. It only makes sense.