Music sharing is one of the most controversial topics in copyright law. And mix tapes have been the classic, iconic form of music sharing for the last 30 years. Even in the face of technological development so rapid and far-reaching as to remove the literal “tape” from “mix tape,” there are nonetheless modern incarnations that crop up on a regular basis, from mix CDs to mix-sharing websites. Social norms permit and even encourage the creation of these modern mix tapes for such diverse reasons as wedding favors and birthday gifts.
If copyright law is meant to promote creativity and proscribe infringement, then the mix tape - past and present - is perfectly situated for analytical inquiry. In this article, I analyze the mix tape under contemporary copyright law, and conclude that the law fails to address practical realities of modern home recording, to its detriment. To the extent that the Audio Home Recording Act was explicitly passed by Congress to guarantee “the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use,” it falls far short. Recordings made with the use of computers do not fall within the parameters of the Act, and thus, while analog mix tapes of the past would be protected, digital mixes generally would not. Further, it is not at all clear that mix tapes are protected under principles of fair use.
Distinguishing sharing from stealing, private from public, and commercial from noncommercial may be more difficult to determine in the context of digital media, but no one is served - not the creators of content, nor consumers, nor the music industry - by failing to address the issue on its merits. The mix tape is a perfect example of the failures of modern copyright law. Through this analysis, it becomes evident that state of the law is unclear at best, and inapposite at worst. By failing to effectively address modern home recording, copyright law alienates both the creators and the works it seeks to promote.
