Will Creator Opposition to YouTube Make Labels and Publishers Step Away?

By Chris Castle

[Editor Charlie sez: A version of this post first appeared in the MusicTechPolicy Monthly Newsletter.  Subscribe for free in the sign up box at musictechpolicy.com.]\

As manager Irving Azoff noted in his “Open Letter to YouTube“, the music community has never been more united against Google’s misuse and abuse of the government mandated “safe harbors”.  (Mr. Azoff is one of the few in the music business who has stood up to Google.)

When mixed with Google’s dominant market position, highly litigious business practices and massive lobbying effort, negotiating with Google is not really negotiating–one of the main reasons all such activities are cloaked in nondisclosure agreements.

In response to Mr. Azoff, a YouTube star asked why does the music industry keep taking the money from YouTube if it’s so awful.

That’s a very, very good question and I’m so glad he brought that up.

What typically happens in the last few YouTube negotiations is that Google gradually ratchets up the advances and eventually the labels and publishers acquiesce.  What’s different this time is that the deals are being made in a highly public way–the artists and songwriters who ultimately call the shots contrary to popular myth are going to have a hard time relinquishing their public positions against Google and YouTube in return for thirty pieces of silver.

The changes that artists and songwriters require at Google go far beyond money. What is needed is for Google to change its behavior, something that Google refuses to do.   Why?   Because it’s highly profitable business model is built on an extreme interpretation of the outmoded “notice and takedown” provisions of the so-called “DMCA safe harbors”.  The “DMCA” is a 1998 amendment to the U.S. Copyright Act that is a massive failure largely because of Google’s misuse of those safe harbor provisions to Google’s great profit.

To the extent that lawmakers know the details of YouTube’s operations at all (and many don’t know the fundamental fact that Google owns YouTube), many lawmakers believe that Google provides the tools to block the unauthorized use of music on YouTube.  This is principally through Google’s “ContentID” and “Content Management System” applications.

These applications do not work very well, despite Google’s well cultivated reputation for solving Internet problems.  DMCA abuse is a problem that Google created due to its selection of a legacy business model.

What some lawmakers are now finding out for the first time is that Google does not make these tools available to everyone, but instead YouTube has a chicken-and-egg definition of who gets these tools that tiptoes around an essential fact–you only get ContentID if you grant a license to YouTube.  And if you don’t?

Then thanks to Google’s interpretation of the DMCA safe harbor, you have to monitor YouTube 24 hours a day, 7 days a week if you want to stop the infringing use of your work.

And don’t forget–even if a copyright owner grants the license, they have little control over how it is used in “user generated content.”  For example, Jack White’s music was used in what appears to be a sex tourist home video monetized by Google with ads from an asian “dating” site, Prudential Insurance and the band Apocalyptica:

If YouTube negotiations fall apart this time, Google will no doubt try to spin the failure away from its misuse of the DMCA safe harbor to extract the payment of shakedown money.  Instead, they’ll want lawmakers to believe that any massive rejection by key artists and songwriters amounts to “copyright misuse” of the major labels and publishers responding to the desires of their artists and songwriters.

The truth is there is no amount of money that Google can pay that will make up for the costs of enforcing the DMCA notice and takedown, most of which have to be borne anyway, license or no license.  Enforcement that is entirely for Google’s benefit.  Forcing creators to play the whack a mole game is one of the great gifts of any crony to any capitalist in history.

Face it–Google’s dominant market position and the legacy businesses it has built are dependent on a compliant artist community (not to mention compliant lawmakers who look the other way).  But given the united and public commitment of the artist and songwriter community to stopping DMCA abuse by companies like Google, I wonder if the labels and publishers think that taking the king’s shilling is worth spending the political capital to offend their artists and songwriters who have gone all in on opposing Google’s legacy business practices.

On the other hand, if Google promotes ContentID and CMS as solutions, shouldn’t Google make these tools available to all creators?  Should Congress require Google to not only make the tools available to everyone, but even expand the application of these tools to search results to counter the massive infringement Google enables through search?

It is not quite too late for Congress to fix this mess.  The safe harbors were intended to give a little latitude to reasonable people acting reasonably.  The DMCA was never intended to be an alibi.