Author(s): Robert P. Merges
Abstract: This brief Comment was prepared as part of a conference on Intellectual Property and Social Justice at U.C. Davis Law School in March, 2006. I argue here against a broad legal right to remix digital content – to freely alter or modify pre-existing copyrighted works. I first note that remix culture is flourishing under our current legal regime, partly as a result of high enforcement costs on the part of copyright owners, and partly due to voluntary waivers of copyrights by content owners who see a market opportunity in encouraging remixing. Next, I argue that despite widespread de facto remixing, remixers should not be given a legal right to remix any and all content. I contest the assertion by some theorists that remixing is necessary for the self-actualization of people living in a media-saturated world. I note that themes of rebellion and resistance dominate the narrative of the pro-remix literature, and introduce a counter-narrative: the struggling content creator, trying to make a living creating and selling digital content. Because these creators have a dignity interest in what they create, and because intellectual property rights can help them make a living at what they do, the interests of remixers ought not automatically trump creators’ claims.
Keywords: intellectual property, copyright