All your favorite major label musicians—Taylor, Gaga, Katy, Jennifer Hudson, Yoko Ono, Amy Grant and Kacey Musgraves, among many more—have joined the music industry’s titans in asking for reform of the Digital Millennium Copyright Act (DMCA).
In a petition (see it here) running until Thursday in DC-based outlets such as Politico, The Hill and Roll Call, 180 artists, labels and organizations claim that the DMCA “has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish.” Though these “major tech companies” are not named, it’s assumed that this advertisement is specifically targeting YouTube, with whom the music industry has been squabbling over this very issue for some time.
The DMCA was signed into law in 1998 and enforced beginning in Y2K—practically the Pleistocene in internet years. These artists and record labels believe the law’s “safe harbors”—provisions meant to monetarily protect internet properties from being prosecuted for the acts of third party proprietors—are depriving them from their rightful royalties, and that copyright takedown requests, which require the copyright holder to file for each infraction, aren’t easy or far-reaching enough. In other words, hypothetically every time a 14-year-old uploads “Style” to a slideshow of her wee boyf on YouTube, Taylor Swift (and her label) wants to be paid for it.
It’s all a bit complicated, but Billboard explains it well here:
Most Internet companies need to get permission from labels in order to use their music — a negotiating dynamic that results in high fees. With services that operate under the DMCA — like YouTube and, until recently, SoundCloud — the dynamic is very different. These services also stream music uploaded by users, and copyright holders who don’t want their content online need to file takedown notices — one for each copy of each song. Instead of selling the rights to music that a service needs, label executives say they’re stuck selling the rights to music that a service essentially already has.
Well, that’s the theory. In practice, it’s more complicated. For years labels have had deals with YouTube that in most cases give them about 55 percent of net revenue from ads sold against their content. The service identifies uploaded material with its Content ID system — which it has no legal obligation to do — then offers rights holders a chance to block or monetize it. YouTube chief business officer Robert Kyncl has pointed out that Google as a whole has paid out more than $3 billion to the music business, and the company says that labels monetize more than 95 percent of the content they claim — and that 99.5 percent of music claims involve Content ID as opposed to manual takedowns. (YouTube declined comment for this story.)
As the petition says, “aspiring creators shouldn’t have to decide between making music and making a living,” which is wholly true—but one could feasibly argue that aspiring creators actually benefit more from platforms like YouTube and SoundCloud, and it’s the established creators who feel cheated about the proliferation of their music. (I would definitely not characterize a single one of the petition’s signers as “aspiring.”) Intellectual property is an important asset to value and protect, certainly far more than our culture (and government!) seems to value it; simultaneously, these platforms are themselves a vehicle for art on the internet that could arguably, if not trackably, helps promote these artists’ music. Without YouTube, and YouTube covers of other artists’s songs, we wouldn’t have Justin Bieber. (Or Karmin. Valar Morghulis.)
The Electronic Frontier Foundation, a nonprofit organization which “defends civil liberties in the digital world,” opposes broad changes to the DMCA’s safe harbors clause, writing that “without these protections the risk of potential copyright liability would prevent many online intermediaries from providing services such as hosting and transmitting user-generated content. Thus the safe harbors, while imperfect, have been essential to the growth of the Internet as an engine for innovation and free expression.” Just last month, the EFF wrote about a case in which copyright filters on YouTube were responsible for erasing a series of lectures held by the Hudson Valley Bluegrass Association, which included clips of copyrighted bluegrass music as a form of education, legal under fair use.
When the HVBA appealed to Sony Music to keep the clips in their video, they got a response:
When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.
With the way the major label music industry has treated the internet from its inception—like a plague whose users must be prosecuted, even when they’re 12-year-old girls in the projects who don’t know they’re doing anything illegal—it’s somewhat difficult to be sympathetic to the pleas of the labels, particularly when, plainly, it seems to be less about artists and more about a fight over which wealthy company gets to be richer.
But there is also a very real issue with musicians making less money from their recorded music than they ever have before, and our cultural ideas about how much their labor is worth. (As the musician-supportive nonprofit Future of Music points out, it’s notoriously difficult for artists to get into YouTube’s Content ID system.)
In an ideal world, YouTube and other providers would be able to come up with a plan that wouldn’t tamp down the flow of user creativity but would still distribute a fair income stream to artists—without changing an aspect of a law meant to protect individuals and the free stream of ideas. But that would involve some forethought and cooperation, which at this point don’t seem to be in the cards.
Image via Getty