COPYCENSE

For the second time in the last month, a mainstream news outlet has published an article about the mixtape. Two weeks ago, The New York Times published an op-ed article by a music store owner who wrote about the mixtape market and law enforcement’s focus on prosecuting retailers who sell them, despite the active role that copyright owning music labels play in distributing raw tracks for DJ remixes and the passive role the labels play in enforcing their exclusive rights.

Not to be outdone, USA Today last Friday weighed in on the mixtape market, focusing on how big the market has become. Writes USA Today‘s Steve Jones

Mixtapes long have been part of hip-hop’s culture, but the DJ-produced compilations that once existed underground are percolating much closer to the surface these days. The often unlicensed and frequently bootlegged collections of exclusive advance tracks, hot street jams, diss songs and freestyles — available for sale via the Internet, small retail shops and street vendors, or as free downloads and file swaps — aren’t just for hardcore fans anymore. They’ve become promotional tools for artists and record labels trying to build a buzz.

Hip-hop diehards looking to be the first with the latest sounds or seeking edgier material have always scooped up mixtapes. But 50 Cent (Curtis Jackson) is credited with changing the way they are viewed.

I find it curious that the mixtape market is getting attention from mainstream press. As Jones points out, DJs have been making and selling mixtapes forever: one of the first things a DJ does once he gets his mixer and two wheels of steel is make a mixtape and try to sell it. Back in the day (and I mean in the eighties), I was selling mixtapes for as much as $30 for a 90-minute cassette. (They really were tapes back then.) Now, artists like DJ Vlad are putting out mix-DVDs: mixtapes on DVD, complete with video and film footage. Many of Vlad’s titles sell for between $7 and $15.

To me, the real story is how the music industry allows this infringing activity to occur — encourages it, really — yet chooses to sue file traders. There can be no real debate that mixtapes are illegal: at a minimum, they violate a copyright owner’s exclusive rights of reproduction and distribution; arguably, they violate a copyright owner’s exclusive right to make derivative works from the original. Further, unlike some file traders, DJs who aggressively market and sell mixtapes clearly are deriving commercial benefit from the practice? So why would Big Music go after file sharers, but not mixtape DJs?

One plausible answer lies in perception: the labels perceive there is a promotional benefit to having a track — remixed or not — placed on a mixtape by Vlad, DJ Clue, or Whoo Kid. But isn’t it just as plausible that there is a promotional benefit to having a track active on the file sharing network? Isn’t that, after all, why several labels have hired BigChampagne for years?

Steve Jones. Money in the Mixtape. USA Today. April 20, 2006.

See also:

Alan Berry. The Tale of the Tapes. The New York Times. April 11, 2006.

Jeff Howe. BigChampagne is Watching You. Wired. October 2003.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.