The DMCA is not an Alibi: The Googlization of Art and Artists
[We first posted this in October 2006. How little has changed in 8 years. According to Google’s most recent Transparency Report, Google receives 20 million take down notices a month for search alone.
[Ed. Charlie says: This was a preamble to the 2011 posting of Chris Castle’s 2006 article “The DMCA Is Not An Alibi”. Google recently published its 2011 “Transparency Report” which has a couple interesting facts regarding takedown notices it received. Despite the $500,000,000 forfeiture by Google when it was caught in seven different sting operations profiting from the sale of controlled substances online, there is only one reference to takedown notices relating to drugs in the report–from South Korea. “[A] request from the Korean Food and Drug Administration (KFDA) resulted in the removal of 441 ads that violated KFDA regulations.” And the only country in the world where Google received a “content removal notice” that the Transparency Report states was specifically relating to copyright was from authorities in Brazil. But does this Transparency Report include YouTube? No. “[F]or YouTube, we generally have not included government requests for removal of copyrighted content….The vast majority of requests for removal of copyrighted material on YouTube are received from private parties….” But no numbers on YouTube. I wonder why?]
YouTube have now established the new model in the Google Nation:
Step 1: You create the art;
Step 2: Google steals it from you;
Step 3: Google makes you chase them to take it down;
Step 4: If you can afford to chase Google to try to make Google take it down and Google does take it down, the work Google stole will suddenly reappear;
Step 5: See Step 3;
Step 6: See Step 4;
Step 7: See Step 3;
Step 8: See Step 4;
Step 9: See Step 3;
Step 10: See Step 4;
Step 11: See Step 3;
Step 12: See Step 4;
Step 13: Message from Google: Tired of this yet?
Step 14: See Step 3;
Step 15: See Step 4;
Step 16: Tired of this yet? Got any money left?
Step 17: See Step 3;
Step 18: See Step 4;
Step 19: Now if you’re tired of this, or you don’t have any money left (and since we are billionaires) what we could do little artist is give you a share of the advertising revenue we are/could be selling on the pages with your artistic works. Approval over advertisers? Oh, no, we don’t do that. And of course we will do whatever we want to try to commercialize your name, likeness, song titles, genres, and the clothes that you wear. And that revenue share? We’ll decide what’s fair because we are Google and we do no evil.
Now there’s no need for name calling, we certainly don’t think we’re philistine cretins with as much appreciation for art as a stuck pig. We’re Google and we do no evil.
We call this a shakedown where I come from. But this is the business model of the Google Nation. Take other people’s property and sell it back to them.
And that, my friends, is the new boss. If you hated the record companies, they were Mother Theresa compared to this crowd.
The Congress passed something called the Digital Milennium Copyright Act in 1998. The DMCA has in it something called “notice and takedown”. (The U.S. Copyright Office has a helpful page on this subject with more links.) The notice and takedown provisions essentially say that if you are an online service provider and are not otherwise aware of infringing activity going on in your house, if a copyright owner finds an infringement on your site they can send you a notice and make you disable access to the infringing material.
The way that Google wants to interpret the DMCA skips the first step—the keep your house in order step. They want to interpret the DMCA as requiring copyright owners to notify them for each instance of infringing material on YouTube—but make no mistake, this is about Google more than it is about YouTube. YouTube is just the test case.
A JASRAC (the Japanese author’s society) forced YouTube to take down 30,000 infringing works over the weekend. Think about that for a minute. You won’t need much more than a minute’s thought to see that that is a ludicrous situation. Even if you could keep the enforcement costs to $10 per notice (which is very low), that is $300,000 in costs to notify Google that they are massively infringing your works. [YouTube’s notice and takedown rules are here. While you don’t have to hire a lawyer to do this for you, anyone who was handling a large infringement claim would likely hire a lawyer. Even if you are able to handle the notice and takedown yourself, you still have the value of your own time to consider in chasing these people.]
Because that thought is so incredibly stupid, I can’t believe that the Japanese company didn’t get something in the way of damages for those 30,000 works. Of course, we don’t know that because no journalist seems to have asked that question.
Needless to say, independent artists cannot afford to go after Google, and often don’t know about or can’t afford the notice and takedown. Many artists will want to participate in the GooTube, which is fine—but there is an assumption there that the artist will control everything that gets posted. Not the case. I’m dealing with a situation right now where an independent artist had a video of a performance they did not intend to be widely distributed posted on GooTube.
Let’s be clear–I am trying to reduce legal fees for artists and increase personal responsibility or liability on the part of the YouTubes of this world. Google’s interpretation of the DMCA is full employment for lawyers. Not what I want.
I believe in a very simple idea and there is nothing that Google or anyone else is going to do to dissuade me from this belief: Artists should control their work. If artists do not want to be associated with advertising, they shouldn’t have to be. It’s their choice. And by artists, I mean everyone involved in the creative process, songwriters, producers, musicians and vocalists as well as featured artists.
When you understand that Google is an advertising agency, all will be revealed (or I think so, anyway). If artists wanted to work in an advertising agency, they would have done it. All I suggest is that Google should respect that choice and not steal from them to drag them into the philistine abyss that is a world where everything is for sale—aka the Google Nation. And they should not be allowed to hide behind the DMCA to pull off this massive theft.
The DMCA is designed for people to behave reasonably—it is not an alibi. What we should have learned from observation is that there is a certain element of the Web 2.0 crowd who have no intention of behaving reasonably, and fully intend to steal from us to profit themselves, and they are going to hide behind the DMCA notice and takedown provisions to do it.
If you don’t believe me, see step 19.
Copyright 2006 Christian L. Castle. All Rights Reserved.