Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 2) — Music Tech Solutions
As noted in Part 1 of this post, Google, Amazon and others are filing what are reportedly “millions” of “address unknown” NOIs with the U.S. Copyright Office to avoid paying royalties on songs like “Fragile (Live” by Sting, even if they have licensed “Fragile” the album versions. I fully expect that Pandora will eventually do the same for its on-demand service and Spotify is likely to do the same. This type of carpet bombing of NOIs takes the treatment of songwriters by online services to a new low.
Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 1) — Music Tech Solutions
Google, Amazon and MRI are reportedly filing “millions” of NOIs with the Copyright Office after buying data out the back door of the Library of Congress–all to avoid paying statutory royalties. This takes “carpet bombing NOIs” to a whole new level of hurt for songwriters, and forces the Copyright Office to be complicit in the wholesale rip off.
[Editor Charlie sez: We’re pleased to publish this guest post on YouTube written by Maria Schneider, a five-time GRAMMY-winning composer and bandleader, a board member of the Council of Music Creators, and an active supporter of MusicAnswers.org. Her GRAMMY awards including two 2016 GRAMMY Awards, Best Arrangement, Instruments and Vocal for “Sue (Or in a Season of Crime)” recorded by the Maria Schneider Orchestra and David Bowie, and Best Large Jazz Ensemble Album for “The Thompson Fields”.]
By Maria Schneider
OK, I know: that title really hits below the belt. I apologize. After all, it’s not fair to legal whorehouses that pay their share of taxes to lump them with meth labs and YouTube.
When a nail salon or spa has a back room for illegal prostitution, we shut down the business. When a dry cleaning plant is a front for a crystal meth lab, the government comes in with guns ablazing. Businesses that cover for illegal activity get boarded up and their owners thrown in the slammer. Just because a business carries on facade of legal activity—even offering us a good value from the facade—doesn’t mean we turn a blind eye to the criminality going on.
Before buying YouTube in 2006, Google execs, themselves, acknowledged the video site’s throbbing criminality by describing it as a “rogue enabler of content theft,” whose “business model is completely sustained by pirated content.” Ten years later, it is still commonly understood that a good percentage of YouTube’s music and films are, indeed, stolen content. And just like the tactics of the seedy businesses described above, YouTube has undertaken elaborate measures (much of it through its Content ID technology) to cover for endless unlawful acts that take place in its own illicit digital backroom.
Before I move on—for those of you who think the three illegal activities I describe don’t carry the same weight—plant these facts in your brain: prostitution, in some forms, is legal in many places in the world, including Holland, but copyright infringement and piracy is illegal and criminal virtually everywhere. That’s right, everywhere; even in North Korea.
Money Laundering: A Meth Lab often uses completely separate businesses to cover income and launder the revenue generated. Beyond the violations of drug laws involved in meth, state governments crack down on these labs because money laundering denies them tax revenue. YouTube, while not technically laundering money, has its own neat and clean, built-in way to hide and convert the income it siphons from copyrighted content, so it’s a wonder that every one of our 50 states, and cities and aren’t hopping mad.
Google and YouTube facilitate the theft of billions of dollars in stolen intellectual property. It’s impossible to calculate the losses to photography, journalism, music, movies, cartoons—the list goes on and on. These creative works were bringing billions in “sales tax” into our city and state tax systems as well as contributing billions in “income tax” to state, local, and federal governments. As we’ve all seen our incomes plummet amidst the theft of our creative works, so have the amount of taxes we pay plummeted. When all the value is siphoned off our work, making someone else rich, that “someone else” must be paying the tax, right? Wrong. No one is paying that sales tax, and the vast majority of state, local, and federal income tax has vanished into thin air, too.
Remember, the biggest economic value in this “free” pirating culture comes to the big data lords in the form of data, and the “value” that data creates. It’s the mountains of information about all of us that’s then turned into artificial intelligence from analytics. Their market capitalization in the hundreds-of-billions is based largely on the trade secret IP of their big data that was harvested on our backs. That market value was created with no state, local, or federal income consequences. And even if there ever is an IPO or other stock event where investors in companies like Spotify (another big data company) might be making money off this scheme, they are paying the lowest (capital gains) tax rate there is. And we all know that corporations have a whole host of tax loopholes (loopholes we regular folks don’t have) to hide the real dollars that they do make on things like ad revenue.
Governments should be furious. We, the people, should be furious. Can our economy survive when, more and more, we “pay” by watching endless ads? All that tax revenue vanishes, poof. It doesn’t go back into our schools, our roads, our healthcare, our police force, into the arts, protection of our water, air, and the many things that make our society function—this untaxed fortune mushrooms in size within the secret vault of a worldwide giant that uses it to further devour us for its own gain. Through this “redistribution” of assets, they drain our cities, states and national culture of vitality. Now tell me, how is that different than an illegal whorehouse or meth lab? Their crime is actually more insidious, because it’s so well hidden amidst all the entertaining content and Google/YouTube cutesy-ness. And just like the other businesses, addiction benefits them, too.
YouTube Hides the “Source” of its Music to Encourage and Protect Piracy
When we view/listen to a musical work on YouTube, YouTube provides no information about if (or how) the music is licensed. It seems clear that—like any criminal enterprise—they simply don’t want us to know. YouTube’s pirated videos look exactly like legitimate videos. Even if we want to avoid pirated music on YouTube, we can’t, since YouTube hides the identity of users who upload content to their site.
YouTube could easily determine a large amount of what’s illegally uploaded, as it’s painfully obvious just from reading what the uploader writes in their comments. But YouTube acts as if they don’t know and can’t know. While they make the takedown process incredibly demanding, they don’t ask even the tiniest bit of scrutiny from uploaders.
We deserve better. As a culture, we place great value on the “sourcing” of our food, medicine, clothing, water, and even our coffee, demanding that they come from a trusted or sustainable source, without exploitation or criminality. But when it comes to music, we have collectively allowed these big data companies to pull the wool over our eyes and serve us up a steaming cow pie of exploitation and piracy.
Enormous sums are spent by “big data” to convince the public that “piracy” is not a legitimate crisis. Like a broken record, they push propaganda messages through their surrogate affiliates, like the EFF (Electronic Freedom Frontier) and FFTF (Fight for the Future), promoting false justifications to drown out the cries of musicians, and to divert the public’s attention from their own backroom business. Their propaganda goes something like this:
- “Musicians want to take away your “fair use” rights!
- “Copyright enforcement will create a chilling effect on the internet!”
- “Musicians are doing fine and can just earn plenty of money from concerts and t-shirt sales.”
- “We pay out billions to artists!”
- “Copyright lasts too long anyway, so it’s OK to pirate things.”
- “Get over it you whining, self-entitled musicians. This is the digital age and you just have to learn to adapt.”
- “Music should be free.”
Each of these seven justifications is preposterous.
Myth 1: “Musicians want to take away your “fair use” rights!”
Of the many DMCA takedowns I’ve been forced to file, not once did any user ever assert their “fair use” rights were violated, nor are they likely to, as I’ve never violated someone’s “fair use” right to my music in a takedown. I’ve actually never encountered a “fair use” of my music uploaded on YouTube. I’ve yet to meet any other musician who has ever been challenged on fair use grounds either. The massive volume of piracy violations on YouTube completely dwarfs “fair use” complaints. For YouTube to assert that wrongful takedowns of “fair use” content justify not cracking down on piracy, is beyond perverse.
Fair use is an important legal concept that absolutely must be protected, but it’s completely irrelevant when it comes to full-track uploads of music. There is no “fair use” of a whole track or whole CD, especially when the YouTube video image is a still photo of the CD cover art.
Despite that, YouTube refuses to accurately educate its users with the facts about full-track or full-CD use. Why? Because losing mountains of pirated work from their site would cost YouTube hundreds of millions. The lack of education on this point among users is obvious when you start doing “searches” of user upload comments. Type in, “I don’t own this,” and you’ll find endless users admitting they don’t have the rights to put something up, or type in, “fair use,” and you’ll find endless users incorrectly justifying their upload is covered by “fair use,” as if saying it’s so, makes it so. YouTube knows this, ignores it, and continues encouraging this behavior with inane and misleading “copyright education” videos.
Are we to believe the most powerful analytics company in the world, one that created language translations, maps of the world, virtual reality, and is developing self-driving cars, can’t locate such blatant admissions on their own website? They can and should warn their users to take the content down or face removal of their YouTube channel.
For any user who feels their “fair use” rights were violated through a wrongful “takedown,” the DMCA gives every uploader a very straight-forward way to file a “counter notice.” And when they do, YouTube is required to put the video right back up. It will then stay up, unless the copyright owner somehow (never happens) files a federal lawsuit at a cost of thousands. So even when there might be a bad “takedown,” the uploader has an immediate, free, and relatively painless way to make sure the video in question goes right back up, and stays up.
Myth 2: “Copyright enforcement will create a chilling effect on the internet!”
YouTube and its surrogate mouthpieces like EFF love to say that the enforcement of our constitutional copyright rights will somehow slow the growth of the internet. That’s hogwash for three reasons: 1- the internet is full of very successful legitimate services, businesses and applications that don’t depend upon stealing copyrighted work; 2- where else do we justify the criminality of a business because it somehow allows for economic growth? Just think of the historic implication of following that twisted reasoning, and imagine the world we might be living in if that logic ruled the land; 3- YouTube’s value and growth has skyrocketed at an unparalleled pace and its parent company is now the most powerful and richest company in the world. “Chilling effect” on Alphabet and Google? Are you kidding me?
Myth 3: “Musicians are doing fine and can earn plenty of money from concerts and t-shirt sales.”
This piece of propaganda is the most offensive and demeaning of them all. Even if it was true (which it definitely isn’t), theft should never be justified because the victim has other avenues to earn income. Let’s start with the fact that not all songwriters and composers “perform.” Add that no musician can perform continually. Remember that the touring life of a band or a musician may not be that long. But how about the principle of the matter—we don’t justify stealing apples from an orchard because the farmer can plant some other fruit in between the trees. People don’t work a lifetime to have their work ransacked by companies that aren’t inventive enough to make money except by stealing it. The irony is that many musicians “perform” at a great financial loss in order to promote their records. Now we’re told to tour just so everyone can steal our music?
Myth #4: “We pay out billions to artists!”
All the big streaming businesses that are gutting music creators, love to spout this misleading mantra. The figures may sound impressive in the aggregate, but they’re an illusion. A billion dollars when spread across all the music in the world, in the context of the many billions of users and trillions of “plays,” is peanuts. The simple truth is that income for independent musicians, worldwide, is plummeting across the boards, largely at the hands of one American corporation. Remember, YouTube isn’t just exploiting music from the U.S.; this American company is exploiting the entire world’s music. And the amount of YouTube ad revenue that ends up in most musicians’ pockets is mere pocket lint. It’s not even worth talking about. It’s even less than Spotify pays, and the money Spotify pays out is so horrifically low that artists again and again publicly share in disgust the amounts they’ve received. The whole streaming “model” based primarily on ad revenue is fatally flawed. It can’t ultimately work if it’s not sustainable for the people that create the music. And if it does continue, it can only happen at the peril of creative culture as a whole. Read this passionate letter to the European Commission from 20,000 of Europe’s creators. And T-Bone Burnett’s recent keynote at Americana Fest Nashville, illuminates truths about the power of art that we all need to hold at our core. Thank God artists are waking up out of our collective technology coma and are speaking out.
Myth #5: “Copyright lasts too long anyway, so it’s OK to pirate things.”
Nice try. First off, a philosophical disagreement should never be used as a justification for theft. Furthermore, the length of time that a copyright lasts in the U.S. is the same as in almost every major country. It’s consistent with major international treaties. But just as important, there is a long history, involving centuries of thought and major figures in literature and the arts, that justifies the length of the copyright term. The debate involves strong copyright advocates, with compelling statements from people like Mark Twain and Victor Hugo. Copyright encourages the creation of music, literature, and art that define the very core of who we are as a culture and as a nation. This is exactly why it was written into our Constitution. There is zero justification to shorten the term of copyright in the U.S. to somehow be different from what it is in the rest of the world. Do we really respect art and culture less than North Korea?
Myth #6: “Get over it you whining, self-entitled musicians. This is the digital age and you just have to learn to to adapt.”
It’s amazing that we celebrate the wealth of those who made their fortune off of the digital world, like Steve Jobs and his 260–foot yacht, yet a musician who makes significant income is demonized and told that they have enough. Why is it OK for a musician’s main asset in life, their music, representing a whole life’s work, to be distributed for free involuntarily? The internet puts almost zero copyright protection into place to the financial benefit of a host of corporate monsters, and to the benefit of a population at large that, before all of this insanity, had been perfectly happy paying for recorded music for a hundred years.
These are Constitutional rights we’re talking about. For many musicians that invest in their own recordings, their music and recordings become their main asset. A good share of recordings cost the same as many folks spend on a house, with budgets going from $15,000 to $200,000 and more. Additionally, the creation of the music often requires years of work. It’s not only equivalent to investing in a home, it’s like building it, too. We wouldn’t expect we could take over someone’s home and say, “Oh, you can figure out another place to live and put your things.” And almost all recordings certainly cannot be produced for less than the cost of a new car. We don’t steal cars justifying, “Oh, you can find some other way to drive to work.” If my music files are “just digital files,” not worthy of protection, then logic follows that I should be able to similarly raid my neighbor’s Fidelity 401(k) account; after all, it’s just a digital file, too.
We all know, if someone robs a house, steals a car, or illegally accesses someone’s bank account, they will (and should) go to jail. We certainly don’t say to the victim, “Oh, quit your moaning and learn to adapt!” There’s no “adapting” when assets are stolen, again and again, leaving one in debt every time one invests in one’s own work.
Myth #7: “Music should just be free.”
Even for someone who believes this myth, the reality is music isn’t and can never be free. It costs those who create it everything they have—their time, training, talent, technology, and more—to bring it to the audience. What’s more, everyone who uses YouTube, thinking how wonderful it is that all this music is available for a couple of clicks, is forgetting a crucial aspect of the transaction: they’re paying their internet or cellphone service provider—and they’re paying them a lot to gain access to all that “free.” Furthermore, users are in the end, paying for the ads when the advertising cost is factored into the price of the products they buy, and finally, users are paying by allowing these data lords to hijack their own privacy rights, as the ads they see are based on their private activity. And the more powerful artificial intelligence gets, the more focused the ads will get, which will push the cost of the ad more directly on to each user. It’s a fleecing for our entire society in the end. There’s an old saying, “If it’s too good to be true, it probably is,” and that’s certainly the case with free music.
I believe the average YouTube user would wish to respect the rights of all who make music if they fully understood the reality. If they could truly see the destruction this whole system has brought to musicians’ lives, and if they became cognizant of what it’s ultimately sucking out of their own lives, I believe they’d be horrified. They’d not only be concerned about the musicians it’s directly hurting, but they’d also be worried for music, the arts, and culture itself. The worst offense of the data lords is the manufacturing of a new culture to feed their own greed, a culture they systematically trained, an unwitting audience that’s now fully indoctrinated to expect music for “free.” The calculated effort was described by none other than Daniel Ek, CEO of Spotify, when he said, “Music needs to be like water. It needs to be ubiquitous.” I guess Mr. Ek thinks that water, like music, will just be there forever, no matter how much we exploit and abuse the source.
The current “era” of institutional music theft will not last long. In 30 years, society will look back on this era with embarrassment and disbelief. We all know it’s wrong. Our justifications for allowing “piracy” to fuel the most powerful company in the world are as poor as they were for allowing big companies to illegally pollute or to abuse worker’s rights. It’s time we demand more from these big data corporations. It’s time, we as a culture, force them to step out of the shadows, own up to their abuses, and convert to being legitimate businesses that employ every available measure to uphold the constitutional rights of creators, and assure users that the music hosted on their sites is there lawfully.
Are you a performer, songwriter, composer, producer, or fan, who wants to to help protect the future of music? Sign on at musicanswers.org.
Read Maria Schneider’s ‘YouTube’ Installment #1, YouTube, Pushers of Piracy
Read Maria Schneider’s ‘YouTube’ Installment #, Content ID is Still Just Piracy in Disguise: An Open Letter to Rightsholders and a Music Industry Ready to Renegotiate with a Monster
T Bone Burnett on Google’s Nashville Charm Offensive Coming Soon to a City Near You — Artist Rights Watch
But for music creators, Google’s charm offensive in Nashville is all a sideshow, a corporate feel good effort designed to yank our gaze away from the basic facts – Google is putting all its power and might into killing legal reforms artists and songwriters need to survive.
T-Bone Burnett’s keynote at Americana Fest Nashville TN Thursday Sept 22nd. Reprinted with permission of the author. Technology is turning over every ten years. Their technologies don’t and won’t last. Our art-if we do it right- will. I have come here today first to bring you love. I have come here to express my deep […]
Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested….”And why am I under arrest?” he then asked. “That’s something we’re not allowed to tell you. Go into your room and wait there. Proceedings are underway and you’ll learn about everything all in good time….”
From The Trial, by Franz Kafka.
Right on cue, one Google Shill after another is floating the idea that the U.S. Department of Justice should appeal their latest oopsie to the Second Circuit. Talk about ungrateful–Judge Stanton, the BMI Rate Court judge was also the judge in Viacom v. YouTube and the accompanying artist-oriented class action against Google. In the YouTube case, Judge Stanton ruled for YouTube. Back then he was hailed by Google Shills everywhere as a great jurist, the peoples’ judge and hero of the disruptive class, because he poked a finger in the eye of bourgeois artists.
Talk about your sore losers–Judge Stanton went from #hero to #goat in record time as CCIA’s Matt Schruers told Bloomberg:
Matthew Schruers, vice president of law and policy at the Computer and Communications Industry Association [CCIA], which represents technology companies like Pandora and Google, said he expects the department to appeal the decision.
“Today’s decision will increase uncertainty for music licensees and threatens to complicate an already opaque licensing landscape,” he said in an e-mail.
The CCIA is an OS–Original Shill, which is of course what they get paid to be.
As is Public Knowledge, who we heard from next:
Here’s a press release from the Chief Gloater at Google Shill Lister Public Knowledge, which can be summed up in the well-known edict from Miniature, IGNORANCE IS STRENGTH:
The following be attributed to Raza Panjwani, Policy Counsel at Public Knowledge:
“We are deeply disappointed by Judge Stanton’s summary dismissal of the Department of Justice’s carefully-considered interpretation of the BMI consent decree. The plain language of the consent decree, BMI’s statements to the DOJ, BMI’s marketing language about its licenses, and appellate precedent all support the DOJ’s interpretation. Fractional licensing threatens to deprive the public of access to music by undermining a licensing marketplace that generates over a billion dollars in revenue annually for BMI alone, and which hundreds of thousands of business and outlets rely on to use and play music. This decision introduces uncertainty for users, opens the door to anticompetitive behavior, and should be appealed and reversed.”
Good thing they never asked a songwriter what they thought. Because if this fake problem actually exists, it’s existed for decades–which, as every songwriter knows, it hasn’t.
And then of course, there’s the MIC Coalition which is how all this got started from the way I read the tea leaves.
The MIC Coalition is the supergroup of astroturf, a bottomless pit of money and venom built around Pandora, Google, Clear Channel (aka iHeart), the National Association of Broadcasters, and some other smarminess:
CCIA is a member of the MIC Coalition, as you can see.
Never heard of the MIC Coalition? You only think you haven’t, which is astroturf done right. If you attended SXSW this year (or last year) you may have attended a panel moderated by the long-time Washington lobbyist Maura Corbett pushing the astroturf Berklee-ICE “transparency for thee but not for me” proposals from one Panos Panay and wondered to yourself–who is that person and why is she here? Lobbyist for the MIC Coalition, silly. Naturally she disclosed that…no, wait, she didn’t. I know, I sat through the entire panel (Unlocking the Future of Music with Transparency)–the only transparency on that panel was from Alex Ebert (Magnetic Zeros) who pretty clearly was not in on it.
So the MIC Coaltion has an interesting website–they seem to be a major client…sorry…outlet…for Public Knowledge’s recent work product attacking the Copyright Office. That website has this post about the BMI ruling:
MIC Coalition Urges DOJ to Appeal Judge’s BMI Consent Decree Decision
The MIC Coalition released the following statement in response to Judge Stanton’s recent declaratory judgment in the BMI consent decree case:
“Judge Stanton’s abrupt judgment hurts music lovers across America. By overturning DOJ’s correct and necessary affirmation that the BMI consent decree requires full-work licensing, this ruling undermines the decades-old efficiencies provided by the BMI license, ignores the consent decree’s explicit requirement—affirmed by the Supreme Court—that it indemnify the public performance of works in the BMI repertoire, and turns a blind eye to BMI’s own contracts and statements that make unambiguously clear they have, and continue to, recognize the consent decree’s longstanding requirement to license works in their entirety. All of this, while robbing both the Justice Department and interested parties of their due process, since this declaratory ruling was issued off-the-cuff at a pre-motion conference.
“If left to stand, this decision eviscerates the entire purpose of the BMI blanket license, hurting every restaurant, bar, hotel, winery, local broadcaster, digital music service, retailer and other venue that plays music. This judgment does nothing short of create the exact kind of anti-competitive music marketplace our antitrust laws guard against, causing immeasurable harm to these local establishments and services, their many millions of customers, and to the songwriters and musicians to whom their royalty dollars are paid.
“The mission of the Antitrust Division is to promote economic competition. The DOJ staff took this important responsibility seriously, and should vigorously defend their work of more than two years to fully investigate, listen to all parties, and then take appropriate action under the antitrust laws. We urge DOJ to expeditiously appeal.”
Judge Stanton was “robbing the Justice Department and interested parties of their due process”. Really? Funny, that’s just what the songwriters are suing the DOJ about.
“The DOJ staff took this important responsibility seriously”. Really? Here’s what they took seriously:
So once again–Google and Pandora are behind yet another blatant attack on songwriters. What’s different this time is that songwriters are fighting back, thanks to Songwriters of North America and songwriters Michelle Lewis, Thomas Kelly and Pamela Sheyne who are suing the Department of Justice, Attorney General Loretta Lynch and the acting head of the Antitrust Division Renata B. Hesse.
Google and Pandora are doing what multinational corporations always do in litigation–they bring out their shills to talk to the press about an issue that neither the press nor the shills really have any visceral understanding, but which is absolutely clear to songwriters.
Mr. Kafka kind of summed it up:
They’re talking about things of which they don’t have the slightest understanding, anyway.
Franz Kafka, The Trial
YouTube Censors “YouTube Star” Who Google Invited to Interview European Commission President — Artist Rights Watch
Reuters reports that European Commission President Jean-Claude Juncker gave a series of live interviews on YouTube last Thursday to young social media celebrities, including French vlogger Laetitia Birbes who said that “YouTube’s idea was to do in Europe what they’re already doing in the U.S. with President Barack Obama.” But Birbes got an hidden camera recording of a YouTube employee threatening her career on YouTube if she asked tough questions–and Reuters left out the fact that the EC has three open multi-billion Euro antitrust investigations against Google. That’s three more than the U.S. has.