The other day, this country’s insane copyright laws claimed another victim. Trent Reznor has a website where fans can remix his album all ready to go, but he can’t go through with it because of copyright liability:

On Saturday morning I became aware of a legal hitch in our plans. My former record company and current owner of all these master files, Universal, is currently involved in a lawsuit with other media titans Google (YouTube) and News Corp (MySpace). Universal is contending that these sites do not have what is referred to as “safe harbor” under the Digital Millennium Copyright Act, and therefore are in copyright violation because users have uploaded music and video content that is owned by Universal. Universal feels that if they host our remix site, they will be opening themselves up to the accusation that they are sponsoring the same technical violation of copyright they are suing these companies for. Their premise is that if any fan decides to remix one of my masters with material Universal doesn’t own - a “mash-up”, a sample, whatever - and upload it to the site, there is no safe harbor under the DMCA (according to Universal) and they will be doing exactly what MySpace and YouTube are doing. This behavior may get hauled out in court and impact their lawsuit. Because of this they no longer will host our remix site, and are insisting that Nine Inch Nails host it. In exchange for this they will continue to let me upload my Universal masters and make them available to fans, BUT shift the liability of hosting them to me. Part of the arrangement is having user licenses that the fans sign (not unlike those on MySpace or You Tube) saying they will not use unauthorized materials. If they WERE to do such a thing, everybody sues everybody and the world abruptly ends.

Trent is now “scratching his head” trying to figure out how to proceed.

While it sucks that a cool new project was halted by copyright law, it should be pretty clear how to proceed. There are, in fact, a few options to choose from. None may be completely legal (yet), but for a man who has encouraged fans to “steal my music,” maybe it’s time to take a stand against this madness.

For starters, Reznor could simply decide to go ahead with the project and host it himself. I believe fair use laws would cover his liability. The four factors governing fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Reznor’s remix idea would be a non-profit venture. There would presumably be no advertising on the new website. If Reznor wants to release an actual money-making album in the future, all copyrighted material would need to be cleared anyway, just like any other album. There is an argument to be made, then, that this venture furthers the arts. It is transformative rather than derivative, as mandated by fair use laws.

Further, the potential copyrighted works that could be uploaded through this site would be clearly subservient to the final product, a remix of NIN’s music. As such, I don’t see how these copyright violations could be deemed to substantially use copyrighted material or to have too much of a negative effect on the market value of that material to be ineligible for fair use.

Sure, this strategy would involve Reznor assuming some legal liability, but because there isn’t very much money to be made in this venture anyway, Reznor’s legal liability is small. He might get sued, but they could hardly take him for all he’s worth, as they would have a hard time proving he made any money off the site in the first place. This option involves risk, but as I said, maybe it’s time for this principled rocker to take a stand.

Another option, mentioned repeatedly in the comments left in response to Reznor’s original statement, is to team up with a professional copyright rebel such as The Pirate Bay. Nine In Nails could officially sanction a site hosted by The Pirate Bay on offshore servers, effectively removing it from the jurisdiction our bizarre copyright laws.

Either way, Reznor may get sued, but it is surprising that a man of Reznor’s intellectual powers is puzzled as to how to get his innovative project off the ground. Copyright protections have run amok in this country. They do, in fact, stifle online innovation. This isn’t some abstract concept to Reznor; this is personal. Reznor has been an outspoken critic of copyright law in the past and there are other options available to him to get this project online. Perhaps it is time for him to take a stand on this issue and take a little bit of a risk.

I know if he did - if he went ahead with this project in the face of lawsuits - he would find broad grassroots support for his actions. Perhaps the EFF would like to get involved. Or perhaps those of us active online would like to organize a Trent Reznor Legal Defense Fund.

I’m in for $20. It’s the least I can do to further this fight. How about you?

WHAT'S NEXT?

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