Google’s Muscle-Based Defacto Compulsory License: What About We Don’t Like You Don’t They Understand?

The wisest among you learn to read your portents well
You know there’s no need to hurry, it’s all downhill to hell…

Don’t Stand Still, written by The Original Snakeboy, performed by Guy Forsyth on Unrepentant Schizophrenic Americana.

GMR Formed Out of Pandora Lawsuits Against Songwriters Affiliated with ASCAP and BMI

Yes, the portents are in the water–there will eventually be a showdown with Google (and probably Pandora, too) over the songs they routinely infringe in the name of “permissionless innovation.”  Whether it is today or tomorrow, that day is coming, and by the looks of it the first collision will be between Google’s bully boys and songwriters represented by Global Music Rights, the new PRO backed by Irving Azoff.

The why of all of this is pretty simple:  The unelected ASCAP and BMI rate court judges have decided that the government’s consent decree says that the only way songwriters can license their digital rights under a direct license is to withdraw entirely from ASCAP and BMI.  That’s right, the intellectual elite in a faraway Eastern city decided that the consent decrees–drafted before the Internet existed–require a songwriter to withdraw from these PROs entirely in order to license rights for the Internet.

So some songwriters did withdraw from ASCAP and BMI and started a new PRO called Global Music Rights–a PRO that is not subject to the fiat decrees of the ASCAP and BMI rate courts (like SESAC is not).  In other words, these writers did what the court said they had to do.  To the letter.

Enter YouTube, Google’s Monopoly Video Search Service and the Arrogance of Monopoly

Google’s monopoly YouTube video search service has already demonstrated its willingness to use the DMCA as a shakedown threat against indie labels over Google’s Music Key service.  Those tone deaf bully tactics have landed Google in an antitrust dispute with indie labels in Europe.  Given Google’s complete mishandling of the antitrust case against them in Europe in general, Google managed to step in in yet again and now have a whole new antitrust case involving YouTube alone giving weight to the desire at the European Parliament to see Google broken up justified by its abuse of monopoly power.

YouTube’s argument with the indies was that if you refuse to license to us on MusicKey because you don’t like the commercial terms, then we will let the “user generated” versions of your records flow through YouTube and force you to take them down one by one forever.  This is essentially the same situation on records that Google is now putting GMR in on songs.

YouTube (and-presumably-the new Music Key service) has licenses with ASCAP, BMI and probably SESAC.  Not with Global Music Rights, however.  So when the writers in Global Music Rights moved over, they sent a notice to YouTube that YouTube needed to get a license with GMR or stop using the music–also known in the DMCA trade as red flag knowledge.  Lots and lots and lots of red flag knowledge.

And here’s the twist.   The consent decrees require ASCAP and BMI to issue a license immediately to anyone who wants to use their catalogs (Section IX of ASCAP’s consent decree and Section XIV of BMI’s consent decree, for those reading along). So even if, say, MusicKey, doesn’t have an actual license with ASCAP and BMI, if MusicKey has sent the right notices, then MusicKey can use songs represented by ASCAP and BMI and negotiate a deal.  This is one of the very big points of contention in the review of the consent decrees by the Justice Department and was the basis of Pandora’s lawsuit against ASCAP and BMI songwriters.

But–if you are not subject to one of those consent decrees–like GMR writers, apparently–there’s nothing that compels you to license.

Let me say that again:  If a songwriter is not subject to either the ASCAP or BMI consent decree, there is nothing that compels that songwriter to license at all.  Ever.  Unlike the compulsory license for mechanical royalties (which itself may not be long for this world), there is no compulsory license for performance rights.

Business as Usual for YouTube

So YouTube is confronted with this situation.  And how do the smartest guys in the room decide to handle it?  The usual.

They tell some of the top songwriters in the world (and Irving Azoff) to fuck off.

Why?  Two principle reasons.  First, YouTube wants GMR to provide evidence that the songs were withdrawn from YouTube’s licenses with ASCAP and BMI.  These would be the licenses that GMR is not a party to  So wouldn’t it be more appropriate for YouTube to pass GMR’s letter to the PROs and ask them?

That assumes that YouTube isn’t able itself to confirm what rights it licensed–or more likely is trying to put that burden on GMR, who is not a party to YouTube’s licenses.  Surely a company like Google that unilaterally assumes the mantle of organizing the world’s information would be able to know what rights it licensed from the PROs?  There are some twists and turns here, depending on whether GMR represents 100% of the song, etc., but that’s still a reason for YouTube to go look it up.

This insult is compounded by the fact that Google bought a company called RightsFlow that managed somehow to get some version of song splits for a bunch of songs that it may or may not have owned the data for, and then promptly sold that information out the back door to Google for the great enrichment of RightsFlow at the expense, in my view, of the songwriters whose data was being sold (and Rightsflow’s principals so enriched now appear to be quietly waiting out the statute of limitations). So in a way, YouTube’s position adds insult to injury as they already have a considerable amount of this information and should be in a position to find out whether GMR has correctly withdrawn, if for no other reason than they probably have the data already based on the Google fox guarding the Rightsflow henhouse.

The DMCA As A Sword:  Here Comes the Okey Doke

Just like when the indie labels had the audacity to actually want to be treated fairly, YouTube pulls out the DMCA notice and shakedown.  This should come as no surprise because Google’s entire business model is based on the DMCA notice and shakedown.

When YouTube goes for the DMCA okey doke this time, here’s the threat:  Pull out of the ASCAP and BMI licenses and refuse to license Google?  Then we will continue to use your music–notwithstanding Google’s sainted ContentID content management system that could block unlicensed music before it goes up on YouTube–and wants GMR to buy into the DMCA notice and takedown process–you know, the one that produces notices at the rate of a million a day or so that Google has infringing links in search alone.  In other words, Google wants GMR to stop them before they infringe again.

According to the Hollywood Reporter:

That’s quite upsetting to Azoff, who is prepared to launch an all-out legal war if negotiations don’t prove fruitful and if YouTube refuses to remove the works. Why YouTube and not, say, Spotify? “Because they are the ones that have been least cooperative and the company our clients feel are the worst offenders,” Azoff tells The Hollywood Reporter.  “It’s also their attitude.”

And that, gentle readers, is a lot more temperate than I would be.  Particularly after a lot of gratuitous nasty that stops just short of calling GMR’s lawyer a liar.  (Which might make one ask what is it in the history that makes this so personal for Google or its lawyer.)

Welcome to Google’s Version of the Hotel California

But this tees up what I would suggest is the real issue–does Google care so little about the top songwriters in the world that it fully intends to continue infringing on their rights and monetizing their works for Google’s own benefit while twisting their rights in knots.

Even though these songwriters have entirely complied with the rate court fiat.

Ask yourself this question–if Google does this to the top songwriters in the world, what will they do to anyone else?  And why should any of us do any business with them about anything or help them in any way?

And then ask yourself this:  Why should any of these writers–who frequently are also producing the tracks they write–ever agree to work in situations that their rights aren’t respected?

Here’s an example of what happens with songs on YouTube.

YouTube routinely distributes sex tourist videos (if you don’t believe that, try searching YouTube for appropriate key words).  We posted for quite some time about a particular one using the music of Jack White monetized by Asian “dating” advertising served by Google as well as ads for Apocalyptica.

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 and are served indiscriminately–including to kids.

YouTube eventually did take this video down and missed out on the Asian dating ad revenue–because Beggars had to file a DMCA notice.  This is what Google’s lawyer wants GMR to do.  Search for all uses of your songs on YouTube and block them one by one.  Can you blame anyone for thinking that this is an absurd distortion of the law?  Can you find a Member of Congress who is willing to claim that this was exactly their intent?

The GMR complaint is also timely for a different reason:  Congress is currently trying hard to pass the Stop Advertising Victims of Exploitation Act of 2014 (or the “SAVE Act”) to stop Google and others from profiting from online advertising of human trafficking like they served against the sex tourist video using Jack White’s recording and song.

It will come as no surprise that the bill is meeting opposition from Google and others.  According to the Daily Beast:

Lawmakers are trying to pass a landmark bill to halt child trafficking, but congressional aides say it is facing resistance from big tech companies that have launched a stealth campaign to fight the legislation….Both human trafficking and forced prostitution are already illegal. But what Sen. Mark Kirk and Rep. Ann Wagner, who are pushing the initiative in the Senate and House, respectively, seek to do is create liability for those helping make the connection between pimps and johns….

“The Googles of the world are in a tough spot. They’re not going to speak out publicly against a human trafficking measure. But they also are opposed to it,” said a Wagner legislative aide. According to the aide, negotiations with tech associations usually lead to suggestions that legislation enhance penalties for pimps or johns, rather than online advertisers.

The SAVE Act failed to pass the Senate in the last session of Congress, by the way, so Google got away with it again.

This is the kind of dreck that Google’s lawyer wants songwriters to protect the world against, while Google profits until they are caught.  And remember, this is not happening on some obscure rogue site, this has nothing to do with SOPA, this is happening right here at home on YouTube–right here in your home, actually–totally within Google’s control.

For songwriters, Google’s world is like the Hotel California–you can check out any time you like, but you can’t ever leave.  And your choices are take the king’s shilling or the king will take it all for himself.  And then send the bully boys after you if you complain–with instructions to rid the king of these meddlesome songwriters.

4 thoughts on “Google’s Muscle-Based Defacto Compulsory License: What About We Don’t Like You Don’t They Understand?

  1. Chris
    Seasons Greetings and Happy New Year
    Thank you for all your brilliant and dedicated work on behalf of musicians and songwriters – we all are in your debt-
    you are a very special person
    Best wishes
    Gil Moore

    Sent from my iPhone


  2. google (small “g” ) wants to be the “new tv”… they are trying to do away with pesky things like ‘paying for content’ and especially sync licenses.. which I think is ripe for a massive lawsuit in itself. The ONLY reason they are as rich as they are currently is they haven’t paid for a damn thing that all the competition has to. google loves nothing more than slave labor. This needs to stop.


    Happy New year, Chris.. You rock!


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