Home > notice and shakedown > And don’t forget the songwriters: YouTube is Out of Touch with the Lives of Creators

And don’t forget the songwriters: YouTube is Out of Touch with the Lives of Creators

June 29, 2014

ELI Luncheon Speaker Robert Kyncl: Where is the love, baby? (Photo by Ethan Miller/Getty Images from Guardian)

While the world has rightly focused on YouTube’s problems with indie labels, in some ways Google has just gotten around to doing to labels what they’ve been doing to songwriters for years.

In case you have any doubts about just how badly YouTube is out of touch with the songwriters, we have a copy of the YouTube songwriter agreement leaked to us available here.

YouTube Publishing Agreement

It’s been interesting watching the former music industry executives getting jobs at YouTube and devoting the years of expertise gained from representing artists and songwriters to a single purpose:  Screwing those creators as hard as they can while enriching themselves at the creator’s expense.

I heard one of these people describe their negotiation strategy with publishers–which more or less was get the big guys on board and then cram any deal you want down the throats of the independents.  No different than what YouTube has been caught doing with the indie labels.

We will be going through the YouTube publishing agreement clause by clause and letting you know what we think about it.  Let’s start with the “preamble”.  You might say, the preamble?  How could they be screwing me in the bleeding preamble?  Ah yes, but this is Google, you see.  No stone left unthrown.

YouTube Pub Preamble

So first of all, a YouTube publishing agreement should be with YouTube, right?  This one is with Google.  Why does that matter?  Because Google is acquiring these rights and not just YouTube.  Google has a lot of other properties besides YouTube and just keep in mind that every grant of rights, promise, negative covenant in this document will be a grant to Google.  Also remember that Google takes the position that its privacy policy and terms of service is unified across all of its properties.  This could include its recent acquisition of Songza. So why wouldn’t they intend to get your song rights for all their properties, too?

Next, this is a click through agreement.  No negotiation, take it or leave it, just like they did to the indie labels.  Think that you can get out of the deal because you weren’t allowed to negotiate?  Think you can just say “contract of adhesion” three times and throw salt over your shoulder and get out of it?  Not so fast.  And remember, these people come from the heart of shrinkwrap license land and they’ve thought about this.  I frankly don’t think this would hold up as there’s a world of difference between a shrinkwrap license and a grant of rights in copyright, but do you think that Google won’t exercise their market power to litigate you into the ground?  They could just summon forth Daralyn Durie and get her to do to songwriters what she did to authors in the Google Books case.  (In fairness, I recommended starting a shrinkwrap license for CDs in 1994 which was summarily ignored by the Establishment.  Would a specific shrinkwrap license have helped or hurt the case in 1999?)

So yes, they are consciously trying to jam this down your throat in a legally binding way and yes they will use their legal muscle to make it stick.

And just think–we’re still on page 1.

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  1. July 1, 2014 at 14:51

    I’m an ASCAP member and part of a two man team that had it’s first CD produced in 2009 (LR-60 & Mr. Moods’ “Cosmic Serenades”) incorporated into Youtube’s permanent audio library to be used as soundtrack for anyone’s video production. At one point there were over 125 videos using our music. I never was sent an agreement of any kind. I was sent nothing by Google/Youtube asking permission. The entire discovery was completely by accident during a search. We are independent non-label artists. After finally being directed to a Google rep who could provide answers all I was told was “Hey, it’s good music. Use it as free publicity.” I’m at a loss as to how Google had the power to do this without my knowledge. All our music is registered through ASCAP and I own copyright.

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