Home > artist rights, Uncategorized > Meet the New Boss: Kent Walker Shows Us What Monopoly Looks Like

Meet the New Boss: Kent Walker Shows Us What Monopoly Looks Like

January 16, 2014

YouTube Slide 2

According to Kent Walker, he likes the trial court decision in Viacom v. YouTube, the massive copyright infringement case brought by Viacom, the Premier League and a number of other copyright owners.  Why?

[T]he court has decided that YouTube is protected by the safe harbor of the Digital Millennium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world. (emphasis mine)

The only problem with that is that Walker would have you believe that the Viacom trial court’s bizarre decision eventually finding in favor of YouTube after lots of meandering (and substantially turned back on appeal) announces a novel jurisprudence:  Violating the law–or inducing others to do so–means only having to say you’re sorry.  Stealing is the violation of law in the YouTube case.  And the next second after you apologize you can steal the exact same work again and all you have to do is say your really, really sorry this time.

Even if you say you’re sorry over 20 million times a month–the approximate number of DMCA notices that Google receives for search alone.

Walker also follows the talking points on Google’s charm offensive to try to make us feel good about getting ripped off on YouTube:  First, Mr. Walker is all excited because YouTube “works cooperatively” with copyright owners.  Walker must be referring to YouTube’s massively faulty ContentID system.  ContentID is a system that works so poorly that it has become a colossal time suck for the copyright owners who can afford to monitor it.  For those who can’t afford it, ContentID is an experience that’s something like what would happen if Franz Kafka and P.T. Barnum tried to get some costumes and put on a play in the barn. (If it’s any consolation, Google has a terrible time with registries in general–a user might be able to find out who owns something and in a world of permissionless innovation, ownership is a useless piece of data.  See “Google’s Book Search: A Disaster for Scholars” by UC Berkeley Professor Geoffrey Nunberg.)

In other words, YouTube creates a problem that it expects copyright owners to solve for YouTube and then uses the copyright owner’s lack of means to do so or do so efficiently as an excuse to rip off other copyright owners that don’t participate.  Because if you are an unregistered co-owner of a registered song or wrote a television or motion picture score, you’re kind of SOL.  But rest assured, Google will hold your money.  Until when?  Until you get a final nonappealable judgement in the highest court of the land in every country where the Internet obtains?

(This is very much like the Internet background search companies that agree to take you out of their systems if you provide them with every address you’ve lived at for the last 10 years.  Why do they need that?)

ContentID has not been uniformly well received in the radical anti-copyright community–including the Google Shill Lister the Electronic Frontier Foundation (that receives millions from Google).  For example, Google’s Senior Copyright Counsel Fred von Lohman described ContentID as a form of censorship (“YouTube’s Content ID (C)ensorship Problem Illustrated“) and said “It’s a shame that YouTube, a company that has become synonymous with remix creativity, can’t find the time to fix its own Content ID system to protect remixers from unnecessary censorship.”

Oh, wait…that was when Von Lohman worked for the Electronic Frontier Foundation, before he worked for Google…I guess he was against it before he was for it before he was…I’m so confused.  (If you don’t recognize the name, Von Lohman was the lawyer for Streamcast who did such a fantastic job of making the losing argument before the 9th Circuit in the Grokster case, apparently funded by the Electronic Frontier Foundation on appeal with the approval of its board, including Lessig.  He then went on to represent Limewire, another major loser–and was called out by Judge Woods for apparently advising Limewire to do something that sure sounded like destroying evidence.  After the Limewire loss, he was called up to the Bigs by Google.  Because he won so many cases or because he fought the good fight in line with Google’s true strategy?)

Based on this rather flimsy interpretation of the “safe harbor”, Google then uses Google’s monopoly rents from search and online advertising to subsidize YouTube’s monopoly position.  YouTube has a monopoly position in part because it allows users to upload unauthorized clips from the top music, movies and television programming that the producers of these programs have spent a fortune marketing.  Also known as driving free traffic to YouTube.

Because if there are producers of video or music content paying hundreds of millions, probably billions of dollars (in the aggregate and doing so on an annual basis) to make their content famous and you have a monopoly on video online like YouTube does, then that monopoly becomes virtually insurmountable unless it’s broken up.

So you won’t be surprised to see this graph:

youtube unique viewers

According to Mr. Walker, all YouTube does is “[monetize] the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.”  Sounds very altruistic, don’t it?  The problem is that a good chunk of the “ideas and expressions” didn’t originate with those “billions of people”, Google doesn’t pay for the production and financing of those “ideas and expressions,” and the marketing and promotion of those “ideas and expressions” doesn’t cost Google a dime.

The other thing to remember is that all of YouTube’s “cooperative efforts” trumpeted by Mr. Walker are applied after videos have been uploaded to the YouTube platform.  YouTube relies on machines to implement what networks call “standards and practices.”  Why?  Because YouTube does not intend to actually control what goes out over its “air” for a variety of reasons, most of which can be summarized in Mr. Walker’s view of intellectual property:  “It’s the right to block someone else from innovating.”  The customary implementation of network standards and practices no doubt “gum up innovation“.

YouTube’s colossal failure to control its “air” results in this kind of innovation:

and then there’s some innovative and sage advise about how to shoot up in the femoral vein:

Not to mention highly innovative public beheading:

So when Mr. Walker addresses the Grammy Entertainment Law Initiative with his victory lap keynote in a few days time, it is well to remember that many in the room are those who stand between Google and its permissionless innovation.  Yes, all those who gum up the works with pesky expectations that they get a straight count and that their rights (or their clients’ rights) are respected by everyone in accordance with the law.

Not to mention protecting the name, likeness and reputation of their clients from exploitation in sex tourism videos (aka human trafficking commercials) widely available on YouTube.  Here’s another video with a title that ContentID isn’t designed to catch:  “Sex Tourism, Angeles City, Philippines : Love is Blindness, Jack White”

Oh and that link to Jack White’s artist page?  That was in the sex tourism video’s title which will make the video more likely to come up in YouTube searches for “Jack White”.  Not to mention the prominent use of the song title “Love is Blindness” in the video.  I wonder who told them to do that?

A use of Jack White’s material would likely never be licensed on a straight sync license request.  I would bet that all of the YouTube licenses exclude using songs under the license for this kind of thing, but it is exactly the kind of ridiculous flaw that ContentID will never catch.  And is unlikely to ever catch as it would preclude Google from selling ads on these videos.  And Google doesn’t want to look too hard for anything that stops them making money–such as imposing network-style standards and practices.  Standards and practices that would not only stop unlicensed music, but unlicenseable uses of music.

Here’s a few examples of how Jack White’s music is monetized in this sex tourist video:

sextourism prudential

philippines sex tourism2

philippines sex tourism

And remember–this is not a rogue site offshore with some “room of mirrors” ad serving platform.  This is YouTube where all of the ads are by Google.

Offended? I’m sure you are, and this kind of thing goes way beyond a DMCA notice–you would expect your partner to take active steps to prevent this kind of video from appearing on their network, regardless of whether it uses a song you wrote or administer.  That’s certainly what you would expect of a TV network, right?  And YouTube likes to claim it has replaced television.

Are you offended enough to want to do the right thing?  Well, if you work for a major label or publisher, before you pick up the phone to complain to YouTube, realize that this is what will probably happen: Sometime in the next quarter (i.e., by the time you get someone at YouTube on the phone), it will become apparent to YouTube that you are “gumming up innovation” and trying to stop YouTube from monetizing a sex tourism video with Ads by Google (because all the ads are by Google on this video).  Worse yet, if  you pick up the phone to complain to the brand (e.g., Prudential Insurance in this case), that will really get YouTube worked into a lather.

Somebody at YouTube (one could imagine that someone being Kent Walker) will pick up the phone and call someone above you at your major label and remind them that the label is a stockholder in YouTube and that YouTube pays them a lot of money.  And your senior needs to call you and tell you to shut up.  Shut up or get fired.  And in an industry that has been decimated by the kind of piracy Google promotes, you will shut up because you want to keep your job.  And if this happens to you enough times, you will learn to never complain in the first place.

This is what monopoly looks like.

And that’s why Mr. Walker is speaking at ELI.  He’s just wants you to meet the new boss.

It’s nothing personal, it’s just business.

update: Walker had to cancel ELI to meet with multiple state Attorneys General regarding Googles ongoing failure to comply with its own nonprosecution agreement with the DOJ that cost Google stockholders $500,000,000. In his place Google sent Robert Kyncl, who took time off from screwing indie labels.

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