August 1, 2012

Larry Crane of Tape OP Magazine highlights what must seem like a curious practice by YouTube. First thing–it’s Google, so understand that they don’t care at all what artists think.  (For example, see YouTube’s arbitrary covenant not to sue and refusal to be audited in YouTube’s indie songwriter license of adhesion.)

Having said that, it will not be surprising to know that YouTube has long employed a tactic that can be thought of as Chilling Effects Lite. YouTube leverages the fact that most YouTube videos are embedded in a variety of places, sometimes including the artist’s own website. This distribution was accomplished by the efforts of the artist or the artist’s manager, or the artist’s record company or by fans of the artist acting out of enthusiasm for the artist’s music.  (In fairness, the transmission of the videos is subsidized by Google, although not sure if they want to go too far down that path to a subsidized extension of Google’s monopoly.)

When YouTube gets a take down notice that actually results in YouTube removing the video–usually because the poster hasn’t filed a counternotice (which in YouTube’s case can be essentially anything from the poster indicating a pulse)–YouTube isn’t satisfied to just remove the video. This would cause the video to go dark everywhere it’s embedded.  (See Ellen Siedler’s excellent blog about this kind of thing on her trip to DMCA Hell with Google at Pop Up Pirates.)

Instead, YouTube takes it upon itself to post a notice to the World of Free that capitalizes on the efforts made by the artist and those working with the artist (including fans) to use those efforts to YouTube’s benefit.

How? YouTube uses the same embed codes to post a notice that YouTube had to actually comply with the law. If that notice comes from an artist’s record company or the music publisher of the recorded song because those companies are unable to reach an agreement with YouTube on commercial terms, then everyone who has embedded the video suddenly has a message (that they never embedded) “apologizing” due to the fact that YouTube controls what replaces the embedded video that was removed. That “apology” is then flashed across the Internet including the band’s own webpage if they have embedded any YouTube videos–that may have once been properly distributed but no longer are because YouTube and the label or publisher couldn’t reach a deal.  Note–wouldn’t it make just as much sense to simply remove the video rather than replace the video with YouTube’s own dig at the copyright owner?

YouTube then feeds that “story” to CCIA bloggers and others in the Google press who dutifully report on the incident as manufactured news.

Understand that Larry’s complaint is unusual–most of the time when this comes up it is with the major music publishers or record companies and it gets fed to the press when YouTube is in the middle of a negotiation (see “Death Cab Caught in Warner/YouTube Fight“).

Ask yourself–when videos are embedded, if you said to the artist that what you were embedding was a channel for YouTube to broadcast messages to your fans to your disadvantage to benefit YouTube in a commercial negotiation against your interest, would you view the video the same way?  You might still do it, or you might be more inclined to host your own videos.

In other words–it’s not an “apology” at all, it is a tactic and sometimes a negotiation tactic. It is designed to say to YouTube users that you can’t get free music because someone stopped you. Normally it’s part of the “evil major label” meme.

Actually it’s part of the evil cross-subsidized monopolist notice and shakedown meme.  If it’s not, and YouTube finds it necessary to say anything other than simply killing the link, then why don’t they say that YouTube removed it in accordance with YouTube’s policy, applicable law, or something like that rather than insert a message on embedded links that the artist (or even the poster) didn’t expect.

Artists should understand that when they embed a YouTube video, they may find that YouTube is using that embed to communicate a message that the artist didn’t bargain for.  Which I think is what Larry is complaining of.

The Trichordist

By Larry Cane of Tape OP Magazine
(repost by permission, copyright in the author)

I politely asked Youtube to remove a song by my old band that someone had posted without permission. They took it down but then apologized “sorry about that” and ran my business name as if “blaming me” for removing content. Really? Wow. Pretty damn impartial, huh?

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