Lawrence Lessig, copyright activist and founder of Creative Commons, is promoting his new book “Remix”. In a recent Wall Street Journal column, he raises a number of criticisms of copyright law and suggests several reforms. One criticism focuses on YouTube and amateur videos that incorporate elements from copyrighted works. Lessig attempts to make his point by way of example:

Holden's mom grabbed her camcorder and, for 29 seconds, captured the priceless image of Holden dancing, with the barely discernible Prince playing on a CD player somewhere in the background. Ms. Lenz wanted her mother to see the film. But you can't easily email a movie. So she did what any citizen of the 21st century would do: She uploaded the file to YouTube and sent her relatives and friends the link.

This simple video prompted a legal firestorm. As the 13-month-old rose to YouTube fame, Universal Music Group became aware of the video. Since the video used copyrighted music owned by Universal, they sent a notice to YouTube requesting that it be taken down. Lessig reports that Universal's legal position is that the producer of the video, the boy's mother, is liable to a fine of up to $150,000. She responded by seeking legal advice, and filed a counter-notice alleging that this was considered fair use of Prince’s music.

Lessig notes that this kind of incident is common on services such as YouTube, and criticizes Universal’s position as unreasonable. On Lessig's view, this is a poor use of legal resources, and risks widening the gap between the law and "sensible" people. Perhaps this ignores the value in taking a strong stance against all infringers, and sending a powerful warning. But Lessig is careful to distinguish this kind of YouTube video from selling the copyrighted work of others, or distributing a song in its unadulterated entirety. He concludes by drawing a new line between copyright infringement and fair use:

Digital technologies have democratized the ability to create and re-create the culture around us. Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix. What happens when others profit from this creativity? Then a line has been crossed, and the remixed artists plainly ought to be paid -- at least where payment is feasible.

In other words, he treats copyright as a commercial interest. If a YouTube video has no significant impact on someone’s ability to profit from her copyrighted work, there should be no infringement, according to Lessig.

However, Lessig neglects to mention one important aspect of this controversy: the moral rights of the author. Some musicians would resent their song being used for certain YouTube videos, even if it did not deprive them of any monetary gain. (For example, a song being used to promote a political cause that they disagree with.) Obviously, moral rights can clash with the right to free expression, a key battleground between different kinds of artists. This is why most copyright regimes include exceptions for “fair use” or “fair dealing”, to prevent copyright law from limiting the rights of other artists to respond. But before we can debate an ideal balance of rights, Lessig offers a reality check:

It is time we recognize that we can't kill this creativity. We can only criminalize it. We can't stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them "pirates."

For better or for worse, he’s probably right. There is no reasonable way to scrub out every YouTube video that plays a copyrighted song in the background. But once we accept that, we can focus on the real harm: people who profit from the artwork of others without license to do so. Whether they are plagiarists, bootleggers, or artists who sell art composed of other peoples’ art, they have crossed a threshold. This threshold not only makes the harm easier to quantify, but easier to detect.