Search Results

Keyword: ‘maria schneider’

Must Read from @schneidermaria: Thoughts on “Net Neutrality” From Down Here in the Coal Mine – Guest Post Maria Schneider

December 6, 2017 Comments off

Maria Schneider is a 5-time GRAMMY-winning composer/bandleader in jazz, classical and for her work with David Bowie. An outspoken advocate for the rights of musicians, she has testified before Congress, and teaches and performs throughout the world. 

When Google really really wants something, it’s a marvel to watch how it hides its own greedy motives, while using surrogate groups, political polarization, and their own power over information networks to whip up a national outcry – all as Google feigns concern for the “public good.” Google has now orchestrated just such a public outcry over the vague phrase “net neutrality.” It’s a phrase that has most of us, including John Oliver (see John Oliver’s piece), biting hook, line, and sinker. I smell something rotten.  As musicians, we’re the canaries in the proverbial coal mine. We’ve long been taken on this ride by the world’s biggest data lord, and we’ve developed a keen nose. We’ve been coughing up blood down in this damn mine for too long to not take notice when new wafts of rotten stench make their way down here – especially when we look up the dark shaft and see rainbows spelling the word “Google” beneath radiant blue skies.

So I figured it was time to dig into this phrase “net neutrality” and see what it’s all about. And sure enough, as I’ll explain below, this appears as just another typical Google scam where they systematically create mass hysteria that the little guy is going to somehow be hosed. I’m afraid to say, the public is being duped.

Read the post on The Trichordist:  Thoughts on “Net Neutrality” From Down Here in the Coal Mine – Guest Post Maria Schneider — The Trichordist

Guest Post by @schneidermaria: An Open Letter to David Israelite of the NMPA, and Anyone Interested in the Music Modernization Act — The Trichordist — Artist Rights Watch

March 2, 2018 Comments off

Here’s a guest post by 5-time Grammy winner Maria Schneider on the Trichordist that she says is in response to a letter from National Music Publishers Association head David Israelite about her critique of the Music Modernization Act that appeared on MusicTechPolicy and ARW

via Guest Post by @schneidermaria: An Open Letter to David Israelite of the NMPA, and Anyone Interested in the Music Modernization Act — The Trichordist — Artist Rights Watch

Guest Post by @schneidermaria: The Music Modernization Act – The Devil is in the Details

February 8, 2018 1 comment

[We’re pleased to have another guest post by a frequent and gifted MTP contributor, Maria Schneider.  In addition to being a first class commentator, Maria is a five-time GRAMMY-winning composer and bandleader. 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”.]

 

When it comes to the newly introduced bill called the Music Modernization Act (the “MMA”), there’s good news and bad news.

First, I want to offer some good news.  Many lawmakers from both sides of the aisle appear to be finally waking up to the fact that, in the absence of updated copyright laws, present-day technologies are destroying the livelihoods of music creators, especially workaday creators.  Our elected leaders recognize that changes in the law need to be made.  I think I speak for most music creators in saying, we are very grateful for that.  We are grateful, because the big data companies (like Spotify and YouTube) and the big publishing/record companies (like Sony/Warner/Universal, who have equity in Spotify) have been systematically destroying the ability of most workaday music creators/musicians to make a living.  So, there’s a new bill in the works, that on its face, might seem good – good enough that many are touting it.  It would insure that a stream pays a mechanical.  In theory, that would indeed be great news, and many of our lawmakers, and many in our industry have initially backed this bill.

But now, I need to report the bad news.  The MMA was drafted primarily by lobbyists for the huge corporations that control the music industry.  The MMA is over 100 pages long, and is “Exhibit A” for why people hate lobbyists and lawyers so much.  When you dig into the carefully worded text (which I now have), it becomes very clear that the MMA is the result of cunning drafting that even further protects and insulates the all-powerful publishers and the big data companies.  They’ve paved their own 4-lane highway to drive their Mack trucks over music creators yet again.

Let’s not forget that the copyright rights of all creators, workaday and hugely successful, are so important, that the drafters of the Constitution protected them right in the Constitution itself.  But as I’ll explain in detail below, the MMA basically “outsources” the management of music copyright rights to two separate, “to-be-created” private corporations that will be entirely controlled by these very all-powerful industry players.  That’s like outsourcing the environmental protection from oil spills to a private corporation controlled by BP and Exxon.

Here’s the outsourcing scheme the lobbyists driving the MMA have created: a newly-formed Corporation A will administer the payment of a streaming mechanical royalty that will be implemented, and Corporation B will essentially serve as the tax collector, seeking “assessments” from industry to pay for Corporation A’s activities.  Even if it’s high time for a streaming mechanical, and if the outsourcing of something so important as the management of music copyright must be done, it should be done in a “bullet proof” manner, where the public’s interests, and music creators’ rights, are fully and carefully protected.

The need for that “bullet-proof” structure is made even more critical by the fact that the MMA offers these multi-billion dollar companies (some of the most powerful companies in the world) virtual immunity from copyright infringement.  The MMA bargains away the right of any music creator to seek damages from these companies.  But rather than it being bullet-proof, I see the current draft of the MMA as Swiss cheese in this regard.  It seems pretty clear who has controlled this drafting process, as they have set aside the public’s interests and the independent music creators’ interests.

I want to highlight ten examples of gaping holes in the current version of the MMA.  And for each hole, I suggest a common-sense solution that would not water down the purported purpose of the MMA.  So consider the list below as a litmus test of sorts:  If the bigshot lobbyists who have drafted this MMA throw a hissy fit over any of the following solutions, then that exposes ulterior motives behind the MMA.  In other words, all I am asking for below is that the MMA respect the two main pillars of good government: accountability and transparency.  If these big powerful companies are afraid of these important pillars on which we all depend, then they shouldn’t be signing up to take on the government’s responsibilities.

Here are just TEN BIG HOLES in this outsourcing scheme, along with my proposed solutions:

Hole 1.  No Business Plans. The MMA requires no projected budgets or staffing needs for either corporation, or any requirements about who will actually manage these corporations.  There’s no requirement for a business plan or budget (e.g., salary caps, etc.)  to be approved or to receive independent and objective scrutiny.

Solution:  At a minimum, the MMA should require the Copyright Office (“CO”) to build those requirements into a RFP (Request for Proposal), so that possible entities have to compete for the position.  The RFP should be created with input from all interested parties, not behind closed doors.  The manner in which the CO selects each of these two outsourcing corporations should be based on real and well-thought-through business planning, not on a hope and a prayer.

Hole 2.   No Requirement for Competitive Bidding.  The MMA contains no requirement that either of these corporations be selected through a competitive process.  And there is absolutely no justification for this sort of “sole source” government contract.  The outsourcing scheme in the MMA would never pass muster under regular government procurement regulations that prohibit such insider conflicts.  Actually, the vague “designation of an appropriate entity” language, is unclear, but I’m assuming there would be a government contract.  If the drafters would suggest that no contract is needed, then that would open up many more serious issues way beyond those I’ve addressed here.

Solution:  The MMA should contain language requiring that the CO issue an RFP through an open process, and that each of the two Corporations be selected through competitive procurement that is governed by standard government rules and requirements.  There should be no fast track here for a sweetheart deal for those who happened to have an inside track.

Hole 3.  No Ongoing Government Oversight.  The MMA’s list of responsibilities for Corporation A is long, and will require a huge staff, and that runs the risk of ballooning into a massive enterprise with no real government oversight over a 5-year period.  In addition, under the MMA, if Corporation A runs over its budget because it plans poorly, it can “borrow” from unclaimed royalties–royalties due music creators–to make its budget whole.

Solution:  The MMA should require a greater degree of accountability and the need to report to the CO on at least an annual basis on its progress toward meeting the objectives and timelines in its contract.  If either corporation is failing to live up to the performance milestones stipulated in a real business plan (which are obviously necessary to protect the public), there should be termination rights.  Corporation A should not be allowed to have a magic slush fund to cover its own poor performance, and that compromises the rights of music creators or publishers.  There should be no assumption that “borrowed” funds will be paid back, since the entire business model is untested.

Hole 4.  Governance of These Outsourced Corporations Is Controlled by Those Who Stand to Benefit.  Even if it is a competitive procurement, the current MMA “requirements” for the board for each of Corporation A and B remove any possibility of real competition (e.g., fair competing proposals) for who this selected corporation will be.  For instance, Corporation A is required to have “the endorsement and support” of the majority of publishers, which obviously means Sony/Universal/Warner themselves.   Never mind, I guess, that those three own a huge chunk of equity in Spotify which creates a huge conflict given their responsibility.  Thus, whoever the Big 3 align with, that’s who will get selected to do this.  This is essentially an under-the-radar “sole source selection” – or in other words, a sham.  And of course, once selected, those three get to stack the deck of the corporation’s board itself, as the MMA gives them the vast majority of seats on the board.  As for the songwriter seats (only 2 allotted) – there might as well be zero, because the MMA’s “songwriters” don’t have to have contributed to any more than just a “part” of “a” composition or lyric to hold a songwriter seat.  Spend a ½-hour digging for the MMA’s definition of “songwriter” if you don’t believe me.  Wow!

The same situation exists with Corporation B: the MMA requires the “endorsement and support from majority market share.”  That, by definition, is Spotify and Apple.  It’s impossible for there to be any real competition the way the MMA has set up governance.  As it is, the MMA sets up two corporate boards where the fox is watching the chicken coop.  The dialed-in conflicts of interest are absolutely enormous.

Solution:  The MMA’s governance requirements for each Board need to be changed so that the industry groups with the direct financial interests do not control either entity.  Rather than requiring each corporation to have “the endorsement and support” of the massive corporations who already control the industry, there should be a requirement of real competition in the marketplace.  Additionally (and importantly), both entities should have: a) outside independent board members, b) CO representatives who serve as “ex officio” members of the board (their presence will help enforce the public interest at stake – sorta like having your mother come to your bachelor party), and c) legitimate, independent, full-time, musicians who have no affiliation with any interested party.  It is absolutely not enough for the lobbyists to offer one or two more board seats to their twisted definition of “songwriters,” while still holding the majority.  As between publishers and songwriters, it should be at least, 50/50, and both boards should also include independent board members and ex officio CO employees.

Hole 5. Conflicts of Interest Abound in Funding This Outsourcing Scheme.  The provisions of the MMA describing how Corporation B will be funded are rife with conflicts of interest.  The MMA says there will be an assessment on the digital music services (i.e. Spotify, Apple, et al), and there will also be “voluntary payments” by these same digital services.  This makes absolutely no business sense.  To have this whole unusually complex corporate outsourcing scheme premised upon the HOPE of “voluntary” payments is irresponsible.  It’s also a total conflict of interest, as the proposed governance of Corporation B would be controlled by these very companies that would be expected to make voluntary contributions.  The lobbyists drafting the MMA expect us to have blind faith in the ability of these huge companies to police and tax themselves.  It would support H. L. Mencken’s definition of faith where he says, “Faith may be defined as an illogical belief in the occurrence of the improbable.”

Solution:  I believe the MMA should require any entity seeking to become Corporation B to produce a coherent business plan and budget for the entire 5-year period that includes responsible projections of actual revenue.  And that financial plan (and revenue production) should be monitored throughout the 5-year term on an ongoing basis.  If a major component of a proposed budget is based on the “hope” of voluntary contributions, that proposal should be eliminated from the competition.

Hole 6.  MMA Has Nothing In Place To Assure The Public That These Outsourcing Corporations Claim Nothing Proprietary.  There are no requirements in the MMA that the entity selected to serve as Corporation A maintain open books, open board meetings, open processes, and systems built upon open source code where possible.  That is unacceptable.  To outsource is one thing.  But to outsource into a “black box” system run by (and kept secret by) the biggest players in the industry would be irresponsible.  This entity could end up building and controlling software, data, data analytics capabilities – all that would be privately controlled and owned, and the architecture and ownership of that code would be private as well.

Solution:  There should be a clear requirement that all data, all algorithms, all software written and compiled and maintained by Corporation A (or its subcontractors) be auditable, open, preferably based on open source, and all of it owned by the government, not by the corporation or by any subcontractor.  The MMA, and the contract between the CO and Corporation A, should expressly state that the corporation will have (and assert) no proprietary rights (including copyright and/or trade secret) in any of the software, tools, database, APIs, algorithms, or other documentation or records it creates or compiles.  This would need to include, not just the data, itself, but what is often referred to as the “resultant data,” and/or the “aggregated data;” i.e. any data that either Corporation A or B derives or creates based upon the original data.  Bottom line: These two outsourcing corporations effectively serve as the “trusted agent” of the government, and owe it (and us) a fiduciary duty to protect the public’s interests.  That needs to ring CLEAR in the MMA.  The LAST thing we need is another private big data company that hoards as an asset the data it derives from the public.

Hole 7.   Independent Creators Aren’t Being Given Real Audit Rights.  Once an independent songwriter wants to find out whether he/she has been paid fairly under this two-corporation outsourcing boondoggle, he or she will find that the audit rights under the MMA are horrific.  The songwriter needs to hire a “qualified” accountant (that’s defined loosely, and of course the corporation is not likely to agree to anyone easily).  Then, the notice of the audit needs to be prepared, and actually published in the Federal Register.  Then, the auditor needs to obtain the relevant records from the corporation.  There’s no obligation for Corporation A to provide records within any time period, or in any format.  The devil is definitely in those details.  THEN, the auditor needs to prepare a draft report and send it to Corporation A.  Then, Corporation A gets to pore over the draft, and send back any questions and caveats.  Then, the auditor has to issue a new report.  Even if the auditor ends up finding an amount is owed by Corporation A (even a big amount), the musician has to pay all costs for the audit.  I find it very telling that the lobbyists who drafted the MMA, put such detail and concern into my right to audit, but there is absolutely zero detail describing most other key business terms about how Corporation A will operate.  It would be laughable if it wasn’t so scary.  This laborious and expensive process is the equivalent to me having NO audit right, because the dialed-in audit costs are guaranteed to be in excess of $50,000.  Given the fact that streaming revenue for most independent musicians doesn’t even amount to pocket lint, let me tell you how many of us would spend this amount on an audit to “recover” pocket lint: zero.

Solution:   First, for independent musicians who own their own music and haven’t given it away to the “big three” – give us a simplified audit path that is cost-effective and reflects the amount in issue.  Second, if any music creator does undertake the monumental effort of an audit, and if it is found that Corporation A has underpaid by a large margin, it should be responsible for the costs of the audit.  And third, at a bare minimum, the MMA should require the CO to conduct “spot audits” of independent music creators’ accounts and records throughout each year of the contract, to ensure that proper payments are being calculated and sent, and to ensure the overall robustness of Corporation A’s systems and processes.  Spot audits should be conducted throughout each year, and deficiencies should be required to be addressed as a part of a formal review process.  Although the specific financial information from an audit should be protected as confidential, any deficiencies found by the auditors should be public.  That is standard, and the lobbyists who drafted the MMA surely know that.  This potential liability would create a direct incentive for this private corporation to be diligent and accurate.

Hole 8.  The MMA Doesn’t Require Respect For International Standards for Data and Metadata.  The MMA only makes the most cursory mention of metadata.  However, at least one of the big industry players has been complicit for years in systematically stripping valuable metadata from creators’ works.  Any successful future for digital and streaming music relies on the integrity and protection of metadata.  And this issue has major international implications, with the need to interface with, and collaborate with international entities and data rights organizations that may have different views and different interests from the “big three” and from the NMPA and the other groups that have driven the drafting of the MMA.  The MMA should not grant this black box Corporation A a free license to develop its own private data management system that is not integrated with the world around it.

Solution:  The MMA should require that any database respect the integrity and value of all existing metadata, and that no systems or processes used by Corporation A should diminish or impair the value or function of any such metadata.  Similarly, the MMA should require that Corporation A use its best efforts to harmonize its systems and processes with other important international systems and standards.  The “advisory board” on such issues should be given much greater authority.  We all know that most advisory boards are only for show, but this one needs to have teeth and government mandate.

Hole 9.  The MMA Strips Away Individuals’ Rights to Protect Their Copyright Rights.  The MMA does not appear to deal with the issue of the massive Notice of Intention (NOI) documents filed with the CO by Google, Amazon and others.  There is a huge unresolved financial liability associated with that maneuver.  The filings are impenetrable, and the big data lords who have filed them have made a mockery of an old provision in the copyright law.  But instead, the MMA seems to simply provide some sort of virtual immunity for any such past acts, if the infringers cooperate with Corporations A and B.  Of course, the inherent conflicts of interest in such an immunity scheme are manifold.  Immunity is usually a constitutional sort of thing, and should not be handed out lightly.  For sure, an infringer should not be given immunity for agreeing to follow rules and procedures that were established by the infringer itself.  That’s like a get out of jail free card printed by the prisoners.  It’s completely absurd, but that’s essentially what the MMA does.

Solution:  The MMA should not “retroactively” absolve any company from previous copyright infringement.  It is not up to Congress to bargain away a creator’s right to sue for copyright infringement.

Hole 10.  The MMA Strips Workaday Music Creators of Their Rights Under International Treaties Adopted World-wide.  The language of the MMA seems to prejudice the rights of musicians who, for whatever reason, choose not to formally register their works with the CO.  To prejudice any such rights would be a violation of international treatises that the U.S. has signed, including the Berne Convention, which recognizes the copyright rights of a creator, even if the work is not formally registered.

Solution.  It is critical that a statement be added to the MMA that “Nothing in this Act is intended to diminish or impair the rights of any copyright owner who has chosen not to register a copyrighted work with the U.S. Copyright Office.”  It is also incumbent upon the drafters to address the rights of international musicians and songwriters.

I’ll stop here, but this is only a sampling of the holes in this bill.  The fact that our lawmakers are considering fixes to the copyright law is very promising.  But if the approach is to outsource the solution to private companies, it should be done in an iron clad way that protects the music creators themselves, not just the behemoth publishers and data lords that get wealthy off of the creative works of hardworking musicians.

As I wrote earlier, these 10 points should be a litmus test, showing us the real intentions of those who drafted the MMA.  And for those organizations that have not fully thought this through, and have too hastily come out in favor of passing the MMA as it presently exists, I hope this will make you say to yourselves (like Fagin sang in Lionel Bart’s “Oliver!”) – “I think I’d better think it out again.”

Maria Schneider

 

Guest Post by @schneidermaria: Google’s Self-driven “Carma”

May 17, 2017 1 comment

Maria 17

[Editor Charlie sez: We’re pleased to publish this guest post 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”.  Maria’s posts on MTP can be found here.]

Written by Maria Schneider

It’s the height of irony that Google finds itself in court suing Uber over the piracy of documents and creative works it believes should be protected as its intellectual property (IP).  The lawsuit is a battle royale between two mean-spirited data lords, each wrestling to secure its world domination over self-driven cars.

My short summary of their self-driven car case goes like this:  Google offered Anthony Levandowski a whopping 120 million dollars to head their self-driving car development.  Loyalty not being his strong suit, Lewandowski left Google after a few short years, and not before pirating 14,000 drawings, plans, and other creative works Google had spent a ton of time and money to create.  He then used those 14,000 stolen digital files to start his own company, Otto.  Within a year, Uber made Levandowski insanely rich when it bought Otto from him for 680 million dollars.

Google alleges that Uber and Levandowski have “illegally downloaded” Google’s creative works and distributed them to others.  Google is outraged to find its valuable IP in the hands of hundreds of Uber engineers and employees, none of whom have any obligation to Google.  Realizing that their valuable creations will now surely spread to others and devalue Google’s investment even further, Google’s attorney, Mr. Verhoeven, insists that the damage to Google is “irreparable,” exclaiming, “you really can’t put the toothpaste back in the tube!”

Ah yes, karma is a bitch.

Whatever sting Google is feeling, it’s but a mosquito bite compared to the wounds Google has inflicted upon creative artists: composers, songwriters, recording artists, authors, filmmakers, journalists, cartoonists, photographers, the list goes on.  It’s an incalculable number of individual livelihoods, deeply damaged, if not destroyed by IP theft, not only in the United States, but worldwide, all at Google’s greedy hand.

If Google’s claims come to bear in court, Levandowski could go to jail.  Uber’s attorneys and managers could be fired for buying what was obviously “hot merchandise.”  And Google’s attorneys and management will surely be reprimanded for not having better protections in place to protect Google’s valuable IP.  But should anything about all of this surprise Google?  The highly coveted, wildly overpaid man-boy, Levandowski was just a bad apple that didn’t fall far from the tree.  He was only paying forward the general culture Google itself created – a culture Google has imposed on the entire world through its monopoly on information, its massive market power, and its incessant lobbying to destroy others’ intellectual property rights for its own financial gain.

Let’s go back to 2006.  Back then, Google was kicking the tires of YouTube, trying to decide if Google should acquire it.  In trying to make that decision, these following statements were made by Google’s management:

“I can’t believe you’re recommending buying YouTube . . . they’re 80% illegal pirated content.”

YouTube is a “rogue enabler of content theft.” 

YouTube’s business model is completely sustained by pirated content.”

Even armed with that corporate knowledge, Google gave a big thumbs-up to what they clearly recognized as theft, and went ahead and bought YouTube for 1.65 billion dollars.  And since then, Google has ridden the YouTube train, loaded with its massive cargo of stolen goods, to become the most powerful company the world has ever known.

Google’s culture of disrespecting and exploiting other people’s IP is finally coming home to roost.  With some sort of perverse poetic justice, Levandowski has now done unto Google what Google has done unto others.

Buddha offers the world very powerful words about bad karma: “One who previously made bad karma, but who reforms and creates good karma, brightens the world like the moon appearing from behind a cloud.”

It’s time for gargantuan data lord companies like Google to turn away from darkness and reform, to generate a different karma that brightens the world around them.  It’s time for these companies to stop enabling piracy, to stop making revenue off it, and to stop making revenue off of terrorism, pornography, and fake news, as well.  It’s time they pay a fair amount to acquire content, and pay fair taxes on the valuable data they extract from their billions of worldwide users.  It’s time these companies accept responsibility for the daily crimes that occur on their platforms, instead of hiding behind their weaselly, “we’re not accountable under the DMCA” approach.

It’s high time these companies stop “moving fast and breaking things,” and start driving a little slower and more respectfully, obeying the basic rules of the road.  It’s time for them to make a complete U-turn on our information highway, and steer in the direction of nurturing an internet community based on respect and fairness.  More than needing judges, regulators, lobbyists, lawmakers, or even “moonshots” like self-driving cars, what companies like Google most need, is a shiny brand new karma.

_________

To see more of Maria Schneider’s writing, go to Advocacy for Musicians at Maria Schneider’s Wikipedia page.

Guest Post by @schneidermaria:What Do Whore Houses, Meth Labs, and YouTube Have in Common?

September 27, 2016 2 comments

[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”.]

schneider_lermitte

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:

  1. “Musicians want to take away your “fair use” rights!
  2. “Copyright enforcement will create a chilling effect on the internet!”
  3. “Musicians are doing fine and can just earn plenty of money from concerts and t-shirt sales.”
  4. “We pay out billions to artists!”
  5. “Copyright lasts too long anyway, so it’s OK to pirate things.”
  6. “Get over it you whining, self-entitled musicians. This is the digital age and you just have to learn to adapt.”
  7. “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.

 In Closing

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

 

 

 

Guest Post by @schneidermaria: Content ID is Still Just Piracy in Disguise: An Open Letter to Rightsholders and a Music Industry Ready to Renegotiate with a Monster

July 31, 2016 3 comments

By Maria Schneider

Content ID, YouTube’s digital fingerprinting technology, is under fire lately for very good reason.  Originally touted by YouTube as an effective method of blocking illegal uploads, Content ID was ostensibly the service’s way to protect copyright holders.  But Content ID quickly morphed into a self-serving massive moneymaker.  Their pitch goes something like this: “Hey, advertising is good for you.  Why not use Content ID to cash in on all the piracy by getting a share of revenue we can generate from ad placement?”  Well, they don’t call it piracy – but make no mistake, in the end, their whole scheme still depends on a culture of piracy.

M_Schneider_LisaMillerCredit

Since the media presents YouTube’s misleading talking points without challenge, it’s up to us to expose what’s really going on.  There’s a lot to sift through when one digs deep, so bear with me.  In the end, ask yourself if jumping on board, monetizing through YouTube’s Content ID, makes us all complicit in perpetuating the piracy racket that YouTube created to make billions for itself.

1.  YouTube’s 3 Billion Figure is all Smoke and Mirrors

YouTube dangles Content ID and monetization in general in front of music creators to lure us to participate.  YouTube’s line is that if we jump on the monetization bandwagon, they’ll share ad revenue with us.  Sounds like a good deal, but YouTube’s ad revenue has proven paltry when compared to the real cost of producing music.  Like an Atlantic City casino, YouTube wants us to believe that we just might hit the jackpot.  Stories of viral videos make the news and seem like the new brass ring for rights-holders, but this insightful article explains how rare “viral” is.  And of the very, very few who achieve viral, who can sustain it and make a career of it?

The real truth is that most music creators on YouTube are making nothing or next to nothing from the use of their work.  YouTube acknowledges that out of all people in the world with videos/music on its service, only 8000 “partners” qualify for Content ID.  The rest of us can put ads on the videos we ourselves post, but likely the majority of us are never paid anything, not reaching the $100 threshold YouTube requires of us to receive the first check.  And our own uploaded content is competing with pirated uploads of our music that we’re left to police.  The mountain of cash from all the music creators who haven’t yet reached $100 must be creating one hell of a “float” for YouTube.

YouTube boasts of $3 billion in total payouts, but dig slightly below that surface, and you see a shameful number.  They’ve admitted it’s really less than $1 billion per year.  And think about it:  YouTube has over a billion users each month, and over 12 billion users a year, so do the math.   The measure of fairness is not how much YouTube has paid out in total, but it’s whether those who make the music that fuels YouTube’s fortune are getting paid adequately.  Here would be important questions to ask:

1. How many rights-holders are represented on YouTube?  (That number must be astronomical, and likely impossible to calculate.)

2. How many rights-holders can actually pay for the budget of a record from revenue they receive from YouTube?

3. How many music creators never reach the $100 threshold?

4. Of all the music-rights-holders represented on YouTube, how many make even minimum wage on an ongoing basis, year after year, for their life’s work that sits, year after year, on YouTube’s massive servers?

Every musician knows that as long as music is available on YouTube for free, it won’t likely sell very well elsewhere, especially with all the available apps that can rip mp3s right from YouTube videos into your personal library.  And hey, what happened to the mechanical royalty for all of this, guys?  (I’ll be writing about that soon.)  So, if YouTube is going to corrupt all other income streams for those who invest their lives and means into the making of music, then YouTube should at very least pay a living wage, right?

We’ve had plenty of time to test the ad model, and one thing is for certain:  Ad revenue does not pay for the making of music – not even remotely close.  The music industry should quit banging its head into that same wall looking for results.  Face the facts folks – ads will never fuel the music economy.

2.  YouTube Has Us Haggling Over Popcorn Prices, While They Walk Away With All the “Main Event” Revenue

While we’re haggling over paltry ad revenue, we’re diverted from the far greater value that is being generated from our music.  Every month, our music drives billions of users to YouTube’s platform, and the data that Google then gathers from following our fans around the web is where YouTube’s true value lies.  Google and Facebook didn’t get their billion dollar valuations from ad revenue.  YouTube’s valuation largely comes from the mountains of hoarded data collected on the backs of all musicians and creators.  Therefore, part of the value of the YouTube empire should fairly belong to musicians.  Not only should musicians and creators share in the value of data gathered, but they should also have access to the data their creations generate.  Why in the world is it fair for YouTube to keep all of this data as a “trade secret” when it’s generated from our own fans, often through piracy YouTube expressly facilitates?

3. YouTube’s Dirty Secret about Content ID

Content ID is available only to those whom YouTube chooses – and YouTube runs the place like an exclusive country club.  The simple fact is that the vast majority of independent musician-rights-holders are not accepted into Content ID.  I’ve received five GRAMMY® Awards, and even testified about the DMCA next to Google’s counsel, Katherine Oyama, listening to her boast at length about the virtues of Content ID and its ability to block uploads.  But when I came home from testifying in D.C. and applied for Content ID, I was denied.  Content ID is reserved for big record companies with big catalogues, and probably selected independent artists whom YouTube believes will make YouTube a heap of money.  And who even knows to what degree artists or companies with YouTube contracts are allowed to “block” uploads, as those contracts are under NDAs.  Are we seriously to believe they’d permit independent artists to join, only to block their entire catalogue from being uploaded?

In the press, YouTube has fought back against the recent flood of criticism, saying that all rights-holders can access Content ID – that they can get it through “third-party vendors.”  These third party vendors often take between 20% to 50% of the revenue paid by YouTube—after YouTube takes its share.  That means the rights-holder is paying two overpaid gatekeepers.  So yes, it’s available, but at a completely unreasonable premium.  If big record companies are complaining about their bad revenue from YouTube, they should try being an independent musician, paying yet another middleman!

But here’s the most relevant fact that YouTube keeps hiding: BLOCKING UPLOADS THROUGH CONTENT ID IS NOT AVAILABLE THROUGH THIRD PARTIES.  The use they bragged about before Congress – that they imply is available to everyone – does not exist.  The reason is obvious – without ad revenue, there’s zero incentive for the third-party vendor or YouTube to partake.  The third-party vendors would have to charge a fee big enough to pay YouTube and itself to simply block uploads.  What a sick game that would be – paying some third-party company and YouTube to block the pirated uploads YouTube promotes.

Why can’t a rights-holder protect his/her work from illegal exposure on YouTube according to his/her Constitutional right, and then go sell it where he/she wants, for the price he/she chooses to set?  That’s reasonable, right?  Why is that such an unattainable dream for people like me and hundreds of thousands, if not millions, of my colleagues?

If an independent rights-holder wants to keep all their work off of YouTube and keep clear of YouTube’s ad-based, piracy-driven, self-serving, dirty, lawless racket, he or she is screwed.  Is there a single independent artist that YouTube has allowed access to Content ID for the sole purpose of “blocking” uploads?  Katherine Oyama should stop the bragging about Content ID until her company makes it available to “every” rights-holder for blocking.  And certainly, misleading Congress with false claims and self-aggrandizement in a Congressional hearing, and similarly misleading the American public through a calculated propaganda campaign, is in my opinion, deeply unethical.

4. Content ID Legitimizes Piracy – We Shouldn’t Be Complicit

Music creators who succumb to the false appeal of “monetizing” on Content ID, or those whose record company has made that deal for them, have been swayed by YouTube’s line of baloney that illegal uploads are good and aren’t really illegal as long as YouTube offers a pittance from the ads they generate.  Clearly, the infringement orgy YouTube has sponsored for so many years has brought independent musicians and record companies to their knees, as they accept bad deals to monetize the crumbs that are left on the floor from a devoured industry.

Our music industry’s acceptance of the “monetization” tool from Content ID only serves to “legitimize” the piracy that YouTube systematically breeds.  Monetization erases any last vestige of guilty-feeling-illegal-uploaders.  Content ID actually makes them feel good about themselves as they upload to their hearts’ content with zero inquiry.  “Look! I’m making the artists money AND giving them needed exposure, AND I’m offering the public free music at the same time!”

I’ve heard this logic again and again from young people with bloated YouTube channels.  We’ve all fallen into YouTube’s trap:  By making a deal with the devil, right-holders are basically condoning the piracy that has destroyed the music marketplace.  Content ID monetization is steamrolling our Constitutional right to control our own creative works.  We shouldn’t buy into YouTube’s piracy scheme for the few scraps it might offer.

5.  Content ID Offers a Pathetic Deal

With a straight face, YouTube tells you and the media that they give 55% of ad revenue to the rights-holder and only keep 45%.  But they calculate that percentage split after they first reimburse themselves for their own expenses, which they calculate behind their green curtain.  So the 55% figure is not of gross income.  An article by East Bay Ray explains that after YouTube pays itself about 37% for its expenses, rights-holders receive only about 35%.  That’s not a split, that’s a fleecing.

YouTube’s approach reeks of hypocrisy.  Sure, YouTube has expenses.  But has anyone discussed our expenses in making the recording?  Costs should be figured on both sides.  We all agree that when a potter sells a bowl, the price reflects the cost of clay, glaze, the kiln, firing, etc.  When a clothing designer sells a pair of pants, the wholesale price covers the cost of fabric, thread, pattern design, etc.  But YouTube, or rather, Google, the richest company in the world, wants us to accept a business model where the “price” they pay for our music has no rational relationship to the actual costs of making the music.  Who cares about how much they say they pay out.  Their site contains almost the entire world’s library of music, and it’s not even coming close to paying the cost of making that music.  We invest all we have – time, talent, training, technology, and more.  We have the right to expect a reasonable return on that investment.  YouTube is an imperialist tycoon that is finger-flicking less than third world pay at musicians and the music industry for a product that YouTube shouldn’t even have access to in the first place.

6. Who is Clearing all the Rights for Music on Content ID Anyway?

The answer is, probably no one.  When a record company puts out a record, the record company (assuming the artist hasn’t negotiated for ownership) likely owns the copyright to that recording.  And if the record company has struck a Content ID deal with YouTube, chances are they will monetize the record.  But what about the other copyright-holders?  Likely there are songwriters whose works are represented on the record, too.  Often there are several or more collaborators on any given song.  So, what about their right to block uploads?  Where are their royalties?  How are they accounted?  Are they accounted?  Who asked for permission?  Where is the transparency?  This is happening to me, and my answers are: none, nowhere, not, no, no one, and none.  YouTube is a jumbled, colossal rights violations mess that leaves independent rights-holders with the impossible task of doing DMCA takedowns, where YouTube publicly exposes our identities, leaving us open to repercussions from fans or record companies.  The intimidation leads us to do nothing but accept the loss.  There must be millions upon millions of such copyright violations on YouTube.  Maybe that’s why they don’t allow all of us to have access to the Content ID blocking mechanism, because they fear most records would have some rights-holder that won’t allow it to be monetized.  Well, if there was economic incentive, that wouldn’t be the case.  Isn’t that how a free market economy works?

7. YouTube’s Use of Content ID is Un-American

Here are the bigger and broader questions for our industry and government.  Why aren’t musicians and creators allowed to be a part of the American free market, where we set our prices based on the cost of producing our own product?  That’s how manufacturing works in any freedom-loving country.  Why can’t a music creator set the valuation of his/her work in the same way one sells visual art?  Why are the Department of Justice and government, (all of whom are tarnished by their whirling revolving doors with Google – read it!) who are setting most of our prices for us, doing so based on failed ad revenue models from usurious companies?  Why are the DOJ and our government at large intent on propping up a bogus “freemium” model?  And why are they blind to the simple fact that big data companies operate freemium ad-based models all to the greater end of gathering invaluable data to become the biggest player in the AI (artificial intelligence) race?

Why is the survival of theft-enabling, ineffective, ad-based internet businesses more valued than the future of music or livelihoods of musicians?  Why are we collectively not screaming our bloody heads off?  Our songs and music have shaped our culture and the world’s culture for centuries.  Music has brought people and cultures together, serving as the worlds’ ambassador without fail: a voice for freedom, for the oppressed, for change, for comfort, for celebration, and for transformation.

Music creators should be treated like the valuable citizens of this country that we are.  We should be allowed to set our own price at very least!  We aren’t the indentured servants of YouTube, here to make the Google empire rich and powerful.  Given a fighting chance, the market would show how much our fans value our work, as it has for nearly a century.  Taylor Swift and Adele proved exactly that with their quite recent releases that sold millions of good-old fashioned CDs at regular prices.  But when we’re forced to try and create that market in a society with a complicit government that’s allowed copyright theft to run rampant, it’s an almost impossible situation.

When YouTube serves the world mountains of pirated content on a silver platter without having to take a single step to stop the piracy, or Google is allowed to prioritize pirates in their ‘search’ algorithms (even after rights-holders send takedown notices), how could there ever be a true marketplace?

8. Without an Ability to Block Illegal Uploads with Content ID, We’re All Screwed

For the vast majority of us that are unable to protect our music against piracy, we’re stuck playing Whack-A-Mole with an outdated and anemic DMCA takedown process, fighting a tsunami of piracy from a company that does all they can to keep the flood-waters flowing.

So, let us ask ourselves as composers, songwriters, performers, producers, publishers, and record companies: are we willing to be complicit in this whole scheme, cementing piracy as an acceptable norm, all for the measly pocket lint they’re offering us?  I’d sooner fight piracy to the bitter end, and lose, than do that deal with the richest and scariest (“don’t be evil”) company on earth.

9.  YouTube Should Lose Their “Safe Harbor” for Withholding “Standard Technical Measures”

The DMCA’s safe harbor provision requires that companies like YouTube must ensure that “standard technical measures” “are available to any person on reasonable and nondiscriminatory terms” to identify and protect their copyrighted work.  (17 U.S.C. Sec. 512(i).)  YouTube is not allowed to discriminate as to who gets access to tools that have become “standard” in protecting copyright.  If YouTube does discriminate, it is supposed to lose its safe harbor.

It’s right in the DMCA.  This is a point no one has yet pressed.  Content ID has been around and used billions of times to make billions of dollars for years now.  “Audible Magic” is available at a very reasonable price to any company wanting to offer blocking of illegal uploads.  And on Audible Magic, content owners can upload their content for free.  Apple has now created “iTunes Match,” and Facebook is rolling out its own similar fingerprinting technology, so it’s obvious that fingerprinting technology has become a “standard technical measure.”  YouTube can’t deny it’s become the core of their business.  And, if they also tout that it’s widely available through third parties, as they have in numerous publications, that suggests “standard,” too.  Digital fingerprinting is a standard technology that’s now very accessible, it’s just that YouTube stiff-arms most of us who want to use it to block pirated uploads.  And most other sites that allow music uploads from their users, pretend like Audible Magic doesn’t exist, because they don’t want it to exist.  And though the DMCA safe harbor provision requires YouTube (and all internet companies that also allow public uploads), to use the available fingerprinting technology, no one is yet enforcing this application of the law.  It’s high time.

YouTube reserving its copyright protection feature for hand-picked rights-holders, blocking the masses’ ability to fully protect their Constitutional right, even though the technology is right there in YouTube’s dirty fingers, is like denying a rope to a drowning person.  Sounds like clear grounds to take away YouTube’s “safe harbor” protections to me.  It actually feels criminal by my own estimation, when you consider that the violated rights are Constitutional rights.

I wish record companies would step away from their Content ID contracts entirely, and fight a noble fight to enforce this statute in the DMCA that would protect all rights-holders equally, rather than being a complicit partner in the pathetic and dirty Content ID piracy racket.

10.  Content ID Should Be Made “Open Source” for All Internet Platforms

People are starting to wake up to the dangers of allowing a company to amass such power from data and artificial intelligence (AI).   There’s a movement to quickly develop AI technology and algorithms as ‘open source,’ in an effort to keep a few all-powerful hipster tycoons from having AI power over the entire world.  It’s called Open AI, and many seriously talented scientists are flocking to it.  Thank God there are a few people out there scared stiff by the power of those that are controlling AI.

Since Google’s empire is built on the premise that “open” and “free content” is such a grand idea for us little folk, then it’s high-time it puts its money where its mouth is, and make Content ID fingerprinting technology for blocking illegal uploads available to us little folk as “open source” too.  YouTube likes to say how much it has spent developing Content ID, but that’s exactly the point: if you won’t share YOUR works with us for free because you want to recover YOUR investment, why should you expect us to give away our works for free, without having recovered OUR investment?

And YouTube, don’t dictate how we rights-holders can use this now-standard technology.  Let rights-holders use it as they wish – to block or to monetize – no NDA’s, backroom deals, or intimidation.  Let’s make it all free and open, and see what a real marketplace looks like when we actually take measures to control infringement.

YouTube/Google wants the public to believe that certain “copyright” protection somehow harms the internet.  But when their own trillions are made on their own “copyrighted” software, through their own “copyrighted” algorithms and databases, and through their own “trade secret intellectual property,” they suddenly guard it like Fort Knox.  Somehow, YouTube’s and Google’s own copyrights are “good,” but musicians’ copyrights are “bad.”

Here’s the simple truth: protecting copyright doesn’t hurt the internet, it only hurts piracy.  And in the final analysis, Content ID is really just another sneaky way for YouTube to get rich off of piracy, and to try to appear like they’re throwing us a helping hand.  It’s underhanded and deceitful.  We as a music industry shouldn’t negotiate away the true value of our work out of desperation, giving way to the powerful grip of a racketeer (in my opinion) that just wants to keep us quiet.

_________________________________________________________________

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

Guest Post by @schneidermaria: Open Letter to YouTube, “Pushers” of Piracy

May 15, 2016 15 comments

[We’re pleased to post this open letter to 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.]

Open Letter to YouTube, “Pushers” of Piracy

by Maria Schneider 

Hank Green’s recent open letter in support of YouTube (that was in response to Irving Azoff’s open and scathing letter against YouTube) deserves a strong response from musicians and other creators.   I appreciate YouTube’s illegal business model might yield a few anecdotal success stories like Mr. Green’s and his videos of opening beer bottles with antlers, but for the vast majority of the artistic community, including me, and every musician I know (and I know thousands), YouTube is a resounding disaster.

MariaSchneider_GregHelgeson

Maria Schneider in rehearsal

There’s no use in beating around the bush, so I’m going to cut to the chase – I’m of the firm opinion that YouTube should immediately lose its DMCA “safe harbor” status.   And I’m of the further opinion that YouTube is guilty of racketeering.   Let me explain:

YouTube is Not Entitled to “Safe Harbor” Status

YouTube and its parent Alphabet have obliterated the original meaning of the “safe harbor” law with their bullying and coercive schemes to get their users to disrespect and ignore copyright.

YouTube squeaked past its litigation with Viacom by settling their case after a four-year mutual war of attrition.   But what came out of that litigation was the best measuring stick for whether YouTube is still entitled to the protections of the “safe harbor.”   The most important directive from the court in those Viacom decisions goes something like this:   If YouTube is “substantially influencing their user behavior” toward infringing, then YouTube is not entitled to the safe harbor.   It’s that straightforward.

And without doubt, since 2014, YouTube has substantially influenced the behavior of hundreds of millions of its users toward infringement, fermenting a veritable pirate orgy.   YouTube goes way beyond turning a blind eye to the marauding masses; it actively seduces its users into illegal behavior, and has even managed to make its users believe pirate behavior is beneficial to creators.   Hank Green’s latest letter illustrates that perfectly, by explaining how YouTube’s Content ID scheme has been building and morphing since its inception, further contributing to making YouTube and Google a global empire, causing a seismic, cataclysmic shift in creative culture in our country and the world at large.

The vast majority of music on YouTube is uploaded by people with no legal right to do so – users whom YouTube has carefully molded and brainwashed.   And I’m meeting more and more young musicians who feel a growing resentment at being duped into being a part of cannibalistic behavior that is destroying their own financial future to the benefit of a corporate giant.

Here are a few things that the Viacom judges never got to hear – things that in my opinion should immediately kick YouTube out of the “safe harbor.”

Ways in Which YouTube “Substantially Influences User Behavior”

A. YouTube allows infringers to “monetize” illegally uploaded work, encouraging a culture of piracy.   And even after a takedown, YouTube and the infringers keep their past illegal profits for themselves.

B. YouTube has created technologies that allow lightning fast uploads of full tracks and albums, with no questions asked of the uploader, with no checkpoints of any kind.   YouTube knows full well there is almost never “fair use” for full tracks and albums.   So, to encourage this type of uploading can only be seen as blatant encouragement of out and out infringement.

C. YouTube is using Content ID to make users feel good about themselves as they upload work that they don’t own.   YouTube baits users to upload to their hearts content and feel helpful to copyright owners.   But for those of us who weren’t accepted into YouTube’s Content ID protection program, or didn’t agree to drink the purple Kool-Aid of licensing our entire catalogue to YouTube for monetization, tough luck – you’re left with an anemic takedown remedy.   YouTube should proactively direct users to a library of licensed music before they upload, rather than perpetuate the notion that one can upload anything, without inquiry and responsibility.   As it stands, YouTube emboldens users to assume it’s OK to upload indiscriminately.

D. YouTube has publicly offered to pay attorney’s fees up to a million dollars of some users who feel they’ve wrongly received takedown notices.   This publicity stunt emboldens all users to feel that YouTube has their back.   What a way to intimidate the creator and stir up the infringer.

E. YouTube consistently demonizes and intimidates musicians in the takedown process, publicly posting our names and making public apologies for our takedowns accompanied by a sad face.   And inversely, they protect the identity of the user who has infringed the creators work.   This public demonization of creators, contrasted by protection of the user, is unbalanced, and empowers the user to feel they are in the right.   The public apology should be from YouTube itself.

F. YouTube turns a blind eye to beyond-obvious-infringement, and users know that YouTube purposely looks the other way.   Go to YouTube and search “no infringement intended,” “I don’t own this, but…,” “I just want to share this music,” and millions of examples instantly appear where users openly admit to not owning the music or having the rights, but simply want to share it.   Google, the indisputable “king of data” certainly has the analytics to search this stuff and inform those that are breaking the law.

G. YouTube intentionally confuses and misleads users about the importance of copyright rights, offering utterly inane “educational videos.”  Watch Copyright Basics or Copyright School to see how YouTube completely downplays creators’ rights, and overplays the impact of fair use without clarification.   And YouTube’s legal eagle, Fred von Lohmann, even lectures creators about censoring negative commentary in Copyright Basics, so his hypocrisy at having disabled the public’s comments on these pathetic videos was not lost on me.   Any judge would be repulsed by YouTube’s hubris and arrogance displayed in these ghastly videos.  Considering that “music” is the most popular category of content on YouTube, it stands to follow that any educational video should at very least say to all users, “full tracks and albums” almost never qualify as “fair use.”

For years, YouTube has been a “pusher” of pirate activity on its unsuspecting “users.”   The sweeping influence of their scam has succeeded in dismantling copyright from the inside, like a flesh-eating virus, influencing citizens to destroy themselves.   Any company influencing behavior like this, especially for the purposes of eroding Constitutional rights, should lose their safe harbor.

Withholding Content ID from Creators is Outrageous.

There are other grounds for kicking YouTube out of the ‘safe harbor.”   To be in it, the law (section 512(i) which is written in terms even a non-lawyer like me can read) requires that YouTube make available to “any person on reasonable and nondiscriminatory terms” “standard technical measures” to identify or protect copyrighted works.   Well guess what:  YouTube has completely ignored that requirement, and struts around like a banty rooster while doing it.

Content ID is pretty standard “fingerprinting” stuff, and there are other companies that have similarly effective fingerprinting technologies like Audible Magic.   Fingerprinting has become standard, and YouTube certainly uses it very effectively when it comes to monetizing mountains of licensed works.   The DMCA makes it very clear YouTube needs to make that technology available to ANY (the word “any” is in the law) musician, not just the big powerful companies.   And certainly the technology shouldn’t be able to be used to instead coerce copyright holders into monetizing their catalogues instead of protecting them.   The scheme is clear: wear copyright owners down, and then they’ll be on their knees for any scraps at all.   I’m so sorry that so many big companies caved in to that pressure.   YouTube has brought nearly everyone in our business to our knees.

You won’t see me drinking YouTube’s purple Kool-Aid.   They refused me Content ID without any real explanation, but it doesn’t take a rocket scientist to figure out the truth.   This truth about fingerprinting is exposed in Hank Green’s own letter.   The truth even more came to light in Zoe Keating’s Billboard article.

Clearly, after training their unsuspecting users to be pirates, the next tactic is to muscle the weak copyright holders into an all-or-nothing chokehold.   They never wanted creators “protecting” their work with Content ID at all – they want them monetizing their work, for YouTube’s benefit.   (And by the way, YouTube keeps about 2/3rds of the gross ad revenue – read East Bay Ray’s helpful explanation.)   Clearly, the only companies that get some protection from the Content ID service are ones licensing huge amounts of music, and then they probably get to offset a certain amount of work to be protected from upload at all.   I’m guessing a few big artists get to use Content ID as intended –  the ones that YouTube would want to keep quiet.   It’s hard to know the whole ugly truth that YouTube hides from us behind the NDAs Keating spoke about.

The Emperor (or Data Lord) Has No Clothes

So if we take away YouTube’s “safe harbor,” what do we have left?   It’s standing there naked, exposed for what it is – a huge pirate schemer, manipulating and using a lot of vulnerable people in order to feed their own greed, while intimidating and controlling the rest of the people that don’t feed their needs –  the people that need to be kept out of YouTube’s way.   In my opinion this scheme is an old-fashioned racket.

YouTube is Guilty of Criminal Racketeering

YouTube has thoroughly twisted, contorted, and abused the original meaning of the outdated DMCA “safe harbor” to create a massive income redistribution scheme, where income is continually transferred from the pockets of musicians and creators of all types, and siphoned directly into their own pockets.   Congress seems to be too hypnotized by Alphabet lobbyists, swarming like locusts, for the lawmakers to stand up straight with a firm sense of right and wrong, and defend the Constitution and the citizens of this country.

When we analyze the bullying behavior of YouTube, in my opinion YouTube has created an illegal business through intimidation – the classic Webster’s Dictionary definition of racketeering.

Racketeer:  a person who makes money through illegal activities; one who          obtains money by an illegal enterprise, usually involving intimidation.

So let’s look at just a few examples of intimidating behavior YouTube shoves at us in the back alleys of its monstrous empire.

A. YouTube’s first intimidation is that you can’t join Content ID, unless you fit its special secret criteria, which we don’t know what it really is, but which appears to be that you must offer up your whole catalogue for monetization, in order to get the benefit of the technology.   And it must be a big catalogue, clearly bigger than mine.

B. YouTube’s second intimidation is making the musician sign on YouTube’s/Google’s terms in order to do a takedown. (See Stephen Carlisle’s article) It is abusive of the law, self-serving, and intimidating, as there are limits of liability, place of jurisdiction and various legalese that one shouldn’t have to agree to in order to do a take-down.   None of that is in the DMCA.   That’s YouTube’s own special sauce.

C. YouTube’s third intimidation is to reveal to the whole world, the identity of the person exercising their Constitutional right, while protecting the uploader’s identity.   That’s not in the DMCA.   It’s YouTube’s special spin.

D. YouTube’s fourth intimidation is to offer a permanent public apology for me and a sad face (or “frownie face” as YouTube general counsel, Katherine Oyama, corrected me at the Section 512 Hearings before Congress in 2014.   (YouTube and Google love “cute” words, “Alphabet, Google, YouTube, Frownie…” it creates an illusion of being harmless.)   Many rights-holders have told of bullying and threats that have resulted from exposure of their identity.   This demonization and intimidation makes many creators reticent to assert their Constitutional right.   That’s not in the DMCA.   That was YouTube’s grand idea.

E. YouTube’s fifth intimidation is to throw a whole lot of questions at the copyright holder, and even a threat about attorney’s fees, whereas none are posed to the user at the point of upload.   That’s not in the DMCA.   Only YouTube could be so cunning.

F. The sixth YouTube intimidation is the publicity stunt of offering a million dollars to defend a user against a wrongful takedown.   That’s scary.   What if I make a mistake?   And why aren’t they offering a million dollars to me against the endless infringements on my work on their site?   That confusing dynamic of YouTube throwing around their power to embolden their well-trained users is beyond intimidating.   It makes creators just give up, while it inversely cranks infringers up.   Sure, there are wrong takedowns, but there’s no comparison to the incalculable volume of infringement.   This scheme isn’t in the DMCA.   That must have come from YouTube’s goons.

G. The seventh intimidation is that though they have what’s now a standard finger-printing technology to keep content down, they force musicians like me into an endless whack-a-mole game that eventually wears out even the fiercest of us.   I personally know the feeling of giving up, and the resentment that builds when you feel manipulated into helplessness by corporate manipulation.

H. And just because they’re a different head of the same ugly monster, the eighth intimidation is specifically Google’s – Google and their special 46-step path to a takedown (cited by Stephen Carlisle) that again, ends in having to sign on to those nasty terms and condition just like YouTube.   What an abuse of the DMCA.

It’s almost impossible to believe that any group of human beings could have been so bold as to dream up and implement such a sick plan as all of this.   Even Google itself initially expressed that YouTube was dirty.   As we know, they eventually bought YouTube, so I guess Google finally decided that its inspired motto of “do no evil” was just too high of a bar to live by.   The following statements/admissions by Google employees were taken from the Viacom/YouTube case, and were made before Google acquired YouTube:

“A large part of their traffic is pirated content.” 

 YouTube is a “rogue enabler of content theft.”  

“YouTube’s business model is completely sustained by pirated content.” 

“It’s a video Grokster.” 

“I can’t believe you’re recommending buying YouTube . . . they’re 80% illegal pirated content.” 

“…it crosses the threshold of Don’t Be Evil to facilitate distribution of other people’s intellectual property.”   

Google thoroughly recognized this was criminal activity.   But when Google bought YouTube in 2006 for 1.65 billion, their tune suddenly changed.

Copyright Infringement + Intimidation = Racketeering

Since Google bought YouTube, the Alphabet empire folded their new piracy factory into the world’s most powerful company, the world’s richest company, and the world’s most secretive company.   Alphabet encourages, for their own gain, a “free” and “open” society, where all “content” is free and accessible, as though that is some sort of measure of a free society.   But when it comes to their own “content” in the form of its database and algorithms, they choose to guard it like Fort Knox.

The recent dustup at Facebook, with the political influence wielded behind their wizard’s green curtain, is just a small example of the sort of power data lords can have over us ordinary folks.   Alphabet’s influence, control, and domination will only grow exponentially as the value of its “trade secret” database continues to balloon to unimaginable proportions.   Thank God the EU is holding companies like Alphabet responsible, as we in this country all seem to be asleep at the switch, so long as YouTube is there to serve us up some edifying viral videos of somebody lighting their crotch on fire.

What is especially scary about this corporate power is that YouTube is now starting to inject itself into the very manner in which art is created.   Do we really want YouTube controlling the funding of music?   How terrifying – they destroy our creative culture, and now “they” want to save it by helping to create it themselves?   Oh my God!   That brings me to my final revelation:

YouTube Suffers from Munchausen’s Syndrome By Proxy

I was thinking about this whole convoluted scheme YouTube has cooked up with its Content ID program, when something popped in my mind, Munchausen Syndrome by Proxy.   That’s that disease you hear about sometimes on the local news where some sicko caregiver induces an illness to their own patients, so they can then turn around and quick save them and be the hero.

I suddenly realized, oh my God, that’s YouTube!  YouTube has Munchausen by proxy!   I see now – they’re not only evil, they’re sick.   Too bad it’s the most powerful company in the world that has the Munchausen affliction, and the entire world of music, film, and creative arts are the unsuspecting victims.   We, like the unsuspecting patient, can all feel grateful that YouTube, our savior, has come up with the life-saving solution of helping us monetize our pirated work, and they’ll further save us by letting some of us be “the chosen” YouTube artists they’ll produce.

Common Sense Solutions

I asked YouTube nicely to reform its ways when I testified before Congress, offering several key ways to even the playing field and stop destroying musicians and other creators.   But they’ve not only ignored me (and many others like me), they’ve since turned up the heat and made an even greater mockery of the “safe harbor” rules.

Recently I had the opportunity to participate in four of the seven roundtables held by the U.S. Copyright Office on the DMCA’s Section 512.   I offered the following common-sense solutions:

A. Takedown should mean stay-down.

B. There should be mandatory checkpoints and education on the upload, with language created by the U.S. Office of Copyright, as well as a required signed perjury statement on the upload.   Parity between upload and takedown is only logical and only fair.

C. All sites with uploaded content should have to use the latest fingerprinting technology where creators can enter their work for the purpose of protecting it, not for the purpose of being muscled into monetizing it to the benefit of the hosting company.

D. Stop the public display of the copyright holder’s identity when they do a takedown.

For starters, YouTube, would you please consider these four steps as a first, good-faith step in the right direction?

Perspective is Everything

I appreciate that YouTube might work for a select few folks including Mr. Hank Green, but it is not in any way representative of the breadth of the arts in America – musicians, authors, filmmakers, photographers, poets, artists and more.   Alphabet is systematically leeching away our diverse and rich culture in order to become the most powerful and wealthy corporate empire the world has ever known.   And it’s just getting started.

The Internet has brought the world together in many wonderful ways.   I appreciate that as much as anyone, having been the first Internet-only, fan-funded GRAMMY-winner.   But the arts have connected people far more, and for far longer, than the Internet.  The arts have connected us in times of war, brought healing through times of suppression, brought inspiration in times of need, and expression when weak voices needed to be heard.

The Internet and the arts could be powerful if they worked to help one another, but as it stands, the Internet is being used by corporate giants to gut the arts for their own gain – and they are destroying our culture.

I heard an extremely powerful quote yesterday from the great American author, T.J. Stiles, (where he paraphrased Professor Jane Ginsburg from Columbia University) saying: “the worst form of censorship is poverty.”  YouTube/Google, and other data lord companies are absolutely “silencing” and thereby “censoring” the arts – just ask the 80% of Nashville songwriters who have had to leave the profession in the last decade.

Jaron Lanier, who wrote Who Owns the Future, describes musicians as the canary in the coal mine.   While YouTube has the canary’s feathers sticking out of its mouth, we’re not dead yet.   Temporarily dazed by YouTube’s cunning bite, and drowning in its greedy drool, we are slowly coming to our senses.   Musicians and artists of all types, as well as record companies, publishers and agents (who only exist because of music creators), need to unite and stand up for our Constitutional right to own our copyrights, and to force data lords like YouTube out of the lucrative “safe harbor” that it has used to exploit us.

[Download a pdf of this post here.]

Must Read by @MarcHogan in Pitchfork: Congress Is Making Headway on a Bill to Modernize How [Songwriters] Are Paid — Artist Rights Watch

March 21, 2018 Comments off

[Editor Charlie sez:  Marc Hogan, Senior Staff Writer at Pitchfork, takes a detailed and objective look at the Music Modernization Act and makes some critical recommendations for amendments to the MMA.  This is a must-read for all songwriters wanting to better understand the nuances of the legislation.]

In December, [U.S. Representative Doug] Collins introduced the Music Modernization Act(MMA), a 109-page piece of legislation he claims “would literally usher copyright laws into the 21st century.” A Senate version followed a month later. Born from a year of behind-the-scenes negotiations, the proposed law has bipartisan support and—unusual for music-related efforts in Congress—endorsements by lobbying groups representing a broad swath of the industry, from record labels and publishers to streaming services and FM broadcasters. (Some of the bill’s advocates haveargued that it should pass because this time, for once, it could pass.) Provisions of Collins’ bill are expected to be included as part of a package that the Grammys’ policy chief has expressed “very high confidence” will make it onto President Donald Trump’s desk sometime this year….

Though lawmakers are describing the MMA as a “consensus bill,” most of that consensus appears to have been between lobbyists at the negotiating table. While publishing and record-label trade groups advocating for the MMA claim they have cosigns from more than 26,000 songwriters, some in the industry question how much these survey respondents were really told about the nitty gritty. This bill simply shouldn’t be crammed through before the rest of the music community understands what it is and offers ways to improve it. And it’s not just that working-class musicians haven’t been invited to the table—it’s also that the biggest artist advocates they could find are folks like Dionne Warwick and Steven Tyler, neither exactly representative of where songwriting is headed and where royalties should follow….

This alphabet soup of administration would be a lot simpler than the current system, but the details matter. As proposed, the streaming services would fund the MLC, and a board of publishers and songwriters would oversee it. At last (unofficial) count, the board would consist of 10 publishers and only four songwriters. In an open letter, songwriter and big-band leader Maria Schneider has called for an equal, 50-50 split between publishers and songwriters, along with assurance that songwriters would be able to choose their own board representatives. She has a point, and Congress should make the change.

Read the post on Pitchfork.

 

 

Global Songwriter and Composer Organizations Send Open Letter to RIAA Proposing Solution to Massive Failures to Accord Credit and Respect International Laws of Moral Rights

August 16, 2017 1 comment

[For more information go to BASCA website.]

An Open Letter

15thAugust 2017

Mr. Cary Sherman
Mr. Mitch Glazier
RIAA

Via email

Dear Messrs. Sherman and Glazier,

It was with great disappointment that we read the recent RIAA comments to the Copyright Office in connection with moral rights; in particular, with regard to the right of attribution. The RIAA’s argument prioritizes the inconvenience of dealing with accurate metadata over the principle of the protection of the rights of the people upon whose work the music business is built. In our view, and the view of many in the creator community, this is not only irresponsible, it represents a betrayal of the ‘greater common purpose’ to which so many of us are committed—a purpose with which the RIAA claims to agree.

While music creators have greatly appreciated the RIAA’s leadership on, for example, the Music Community submission on Section 512, it’s crucial to note that such a leadership requires buy-in from the community one purports to lead. In this case, not only do you not have buy-in, the RIAA comments have inspired very active opposition, including that from UK and European music creators whose work is consumed widely across the USA but whose moral rights are not recognized, in part, due to your position. The Berne Convention, revised in 1928 to include moral rights, has 172 countries around the world signed up to it; it is only the US that refuses to assert them.

To make our position clear, we urge you to read the comments filed by Maria Schneider in this matter, which we believe capture the general views of the performer and songwriter community. Maria has outlined how enforceable rights of attribution (in the form of statutorily protected metadata) can be useful, if not indispensable, tools in achieving the kind of accountability from the internet that, in other submissions, the RIAA seeks to establish. [See Maria’s comments here.]

More fundamentally, RIAA’s comments are taken by many in the music creator community as a betrayal of our joint commitment to expand opportunities for creators. Unfortunately, this divergence of views gives our common adversaries an opportunity to divide our community.

We certainly are aware that the RIAA and its members have historically not embraced the idea of moral rights, and have tended to view it as a litigation risk. But the basic metadata rights we’re talking about here are already protected by Section 1202. We are not living in ordinary times, and we’re sure RIAA is well aware of the sensitivities regarding transparency and accountability. Without accurate metadata, contributors to a work risk not getting paid. That’s a moral dilemma intrinsically linked to the issue of moral rights — and on this issue the RIAA has now aligned itself with those who seek to enfeeble IP rights.

Even anti-copyright groups like Creative Commons understand the importance of attribution. If the RIAA is seen as less artist-friendly than Creative Commons, the copyleft and all who seek to undervalue our work will benefit. What’s more, this could make the job of aligning creators with the RIAA around our combined interests infinitely more difficult.

The RIAA comments raise fears about technical issues concerning implementation of the metadata. However, we believe this misses the point. No one is asking to add new requirements here. The current ID3v2 metadata tag is clearly a ‘standard technical measure’, and includes 80 separate ‘fields’ for including all sorts of metadata, including performers, lyricists, studio engineers etc. This capability is baked in to every MP3 and AAC. The RIAA should fully support and encourage all of us in the music community to harness and protect that metadata.

Instead, the RIAA frantically lays out a litany of hurdles they claim will prevent digital platforms from giving credit to the many people that contribute to a creative work. We believe there’s no doubt music platforms will come up with innovative and effective ways to give credit. Certainly there’s no need to set expectations at rock bottom as the RIAA did in their comments.

We have no interest in imposing new requirements that are unreasonable, or that require parties to include information that they themselves do not possess. But we do expect that the metadata capabilities that the industry and Section 1202 have given us will be protected, today and into the future.

Accurate metadata is essential to the healthy digital future of music creators, it is also critical to the healthy digital future of each and every Citizen Creator. The potential to report 100% accurate usage is the greatest promise cyberspace makes to Creators. Yet, in your Moral Rights submission, the RIAA seems to approach attribution and the accuracy that metadata provides as if it were a threat.

With key efforts like the Open Music Initiative, the future value of metadata to musicians and songwriters will be absolutely critical. And if, in the process of protecting those rights, we also happen to implicate certain moral rights, so be it.

The RIAA comments go in the exact opposite direction on this crucial issue, failing to take into account the potential value of legislated accreditation via metadata and providing ethical and political cover for Google and others to treat the internet as some kind of accountability-free zone. That, of course, has much broader implications than just with regard to the issue of moral rights.

We urge you and your members to think carefully about how to move forward from here in ways that truly reflect the interests of those you claim to protect. There are corporate players here, whose unfettered commercial self-interest masquerades as ideology and who capitalize upon our perceived divisions.

While the comment period may have technically closed, there is no restriction on the RIAA revising its views, endorsing the comments filed by Ms. Schneider, and affirming the following: a) the importance of metadata to musicians and creators; b) its strategic value to rights-holders in the future of payment/accountability technologies; c) the relevance and authority of Section 1202 in protecting those rights; and d) the short-term and long-term damage and chaos that is created by encouraging music distributors such as YouTube to disrespect and strip that metadata from our valuable creative works. In fact, we hope the RIAA will join us in encouraging the Copyright Office to use its authority under Section 1202(c)(8) to expressly include all of the metadata contained in a standard ID3v2 tag as falling within the definition of CMI.

We ask that the RIAA work with the creator community to address the specific issues of implementation. More important, we strongly urge the RIAA to present a united front in our common cause to protect the rights of music creators and those who present their work.

Sincerely,

British Academy of Songwriters, Composers and Authors (BASCA)

European Composer & Songwriter Alliance (ECSA)

MusicAnswers

Music Creators North America (MCNA)

Council of Music Creators (CMC)

Screen Composers Guild of Canada (SCGC)

Societe Professionnelle des Autuers et des Composituers du Quebec (SPACQ)

Society of Composers and Lyricists (SCL)

Songwriters Association of Canada (SAC)

Songwriters Guild of America (SGA)

Songwriters of North America (SONA)

Five Lies In YouTube’s Spin on Content ID

June 3, 2016 2 comments

youtube-logo-parody-1

An increasing number of artists are stepping forward to condemn YouTube’s sleazy business practices ranging from YouTube’s improbable royalty payments to Google’s legacy DMCA notice and shakedown business practices.  YouTube has struck back with the usual squid ink trying to obfuscate Google’s absurdly ineffective Content ID and Content Management System (“CMS”), most recently to the New York Times.

YouTube’s theory according to the NYT is that independent artists (such as five time Grammy-winner Maria Schneider who graced our pages with her groundbreaking essay on YouTube’s sleaze) are not harmed by YouTube’s “catch me if you can” DMCA shakedown because Content ID–the principal tool that some artists and copyright owners use to block or monetize both UGC and official video assets on YouTube–is widely available.  The implication being if those pesky artists would just use the tools YouTube provides, there would be peace in the valley with sunshine and puppy dog tails for everyone with happiness among the subjects of the Unicorn Kings.

According to the Times:

YouTube says that about 8,000 companies and organizations have access to Content IDand that independents may get access through affiliated companies and industry groups.

See?  The clear implication is that “independents” have nothing to complain about because they can get “access” to ContentID through “affiliated companies and industry groups”.  “Affiliated” in this case means affiliated with YouTube (laughably called “partners”), and that means that the “companies and industry groups” have signed a ContentID license agreement which is essentially a nonnegotiable form contract imposed by Google.

Because Google wants to have the rights to use their IP all tied down.

Ahem.

So let’s start with what YouTube actually says about who gets ContentID:

Content ID Use

And what are the “specific criteria” that copyright owners have to meet for their “substantial body of original material”?

qualifications content id

Here’s where that 8,000 number comes from:

As of July 2015, there are 8,000+ partners using Content ID — including many major network broadcasters, movie studios and record labels — who have claimed over 400 million videos, helping them control their content on YouTube and make money on videos containing copyrighted material.

Now quick–when you read that quote from the Times, did you think that YouTube meant 8,000 entities in the music business?  In the US?  Or did you not really focus on those nuances?

Right.  I thought so.

So that quote from YouTube’s website arguably explains why there’s only 8,000 entities that have access to Content ID on a worldwide basis across all copyright categories (assuming that’s even true).

There’s at least five lies underlying that statement to the Times, all of which you’d miss if you didn’t have the inside baseball insight into the unnecessarily complex Content ID system–and as we know, complexity almost always hides fraud.

Lie #1: Show Me Where I Signed Your Social Contract

The first point is why should artists be required to even deal with Content ID or YouTube at all?  If an artist never consented to being on the site in the first place, why should Google be able to just exploit their work without consent?  Why shouldn’t Google have to have a contract with the artists to exploit their IP?  You know, the way you have to be approved and have a license to use Content ID.

There is tremendous cost associated with engaging with YouTube at all whether you qualify for Content ID or  you don’t.  In fact, YouTube’s royalties are so crappy that it’s entirely possible that the total cost of doing business with YouTube exceeds any royalties you could make–because the cost of dealing with YouTube varies directly with the size of your catalog.

So why shouldn’t artists be able to just say no and keep all of their music (or other work product) off of YouTube?  Every penny spent trying to block unauthorized videos is a penny spent for YouTube’s benefit.  And why is it we have to pay for this?

The truth is that it is not at all apparent that declining the opportunity to license YouTube wouldn’t actually be more profitable than dealing with the incredibly screwed up Content ID and CMS system.

So let’s not assume that Content ID and notice and shakedown are the only possible outcomes here.

Lie #2: Using Content ID Is Not Free

Even though Google doesn’t charge for Content ID, using the system is hardly free, especially for “independents”.  In order to get “access” to Content ID, an independent artist needs to contract with a claiming company–and pay that company anywhere from 20% to 50% of their YouTube revenue.

And let’s be clear–claiming companies exist to fix YouTube’s mistakes imposed on the world due to YouTube’s legacy and highly inefficient DMCA notice and shakedown business.  Every penny spent by an artist through giving a claiming company a revenue share is a penny spent for YouTube’s benefit by an artist capitulating to the notice and shakedown onslaught.

So saying that “independents” have “access” to Content ID through a claiming company “affiliated” with YouTube is a grotesque oversimplification.  There are claiming companies that operate at the more lucrative end of the YouTube doing channel management and MCN or near-MCN business for which they may operate their own in-house advertising sales staff.

The claiming companies in reach of “independents” necessarily have to take a larger share of a smaller revenue stream in order to operate.  And here’s what they don’t do:

Block.

Why do they only monetize?  Because that’s what a revenue share means–revenue.  Using Content ID to just block videos (especially UGC) would only be available for a fee (since there’s no revenue if you block everything).  Independent artists can’t afford to pay a fee to block on YouTube so they typically will capitulate and monetize.

And who benefits from that?  YouTube.

Why would blocking require a fee for service?  If an artist just wants to bail out altogether, then that artist would set the automated controls of CMS to block worldwide.  In order to make that blocking meaningful, there would need to be a lot of manual care and feeding to account for UGC leakage through the very porous Content ID.

That would include techniques like pitch bending to use the curious speed controls on the YouTube player which seem to have one purpose–defeating Content ID.

This is what’s called a royal pain in the trade, so anyone doing that work would have to be paid for the hours and hours and hours it would take to accomplish it.  Since the artist can’t afford to pay someone else to do that work, the artist would need to do it in all their spare time.  Which of course will not be very effective or may not happen at all.

We call this the ennui of learned helplessness.

Lie #3: Artists Cannot Access Content ID

By using the word “access” when it comes to Content ID, YouTube is equivocating yet again.   If you are an independent artist and your distributor has a CMS account (and that’s a small group), do you have access to Content ID?

No.  At best, you can tell your distributor what you do and do not want monetized.  They will only devote so much time to you, however, and they won’t do the manual claiming on UGC, etc., at least not until you get some pretty significant traction on YouTube (meaning over 5,000 views or so on a particular video).

Your distributor will not allow you to get your hands on their CMS or Content ID dashboards.  There’s a good reason for this, which is that the way Google licenses Content ID there’s a good chance that the distributor (such as Tunecore or CD Baby) could never get enough seats for its particular CMS license to allow all the distributed artists to have individual access, and there’s no view in Content ID that would show one artist’s tracks without showing that user all the other artist’s tracks handled by that distributor.

Why?  Because YouTube doesn’t design the system for “independents”.

Lie #4:  Independent Songwriters are SOL

Notice YouTube never talks about independent songwriters having “access” to Content ID.    The closest that an independent songwriter comes to getting access to Content ID is if they opted into the HFA YouTube license connected to the out of court settlement of the class action against YouTube that was a companion case to Viacom v. YouTube (and which wasn’t certified as a class, but is often referred to as a class action by people wishing to avoid using the legal term “putative”).

So ask independent songwriter who opted in to the HFA license how that “access” is working out for them.

Lie #5:  Content ID Is Another Nondisplay Use of Other People’s Stuff

Google has made a subspecialty of acquiring data for one use and actually using it for other purposes–undisclosed purposes.

Remember “GOOG-411”?  This Google product was the “free” Google directory assistance (very similar to Google Voice). Former Googler (and perhaps soon to be former Yahoo!er) Marissa Meyer told  Info World years ago that GOOG-411 was not intended to be what it appeared to be:

You may have heard about our [directory assistance] 1-800-GOOG-411 service. Whether or not free 411 is a profitable business unto itself is yet to be seen. I myself am somewhat skeptical. The reason we really did it is because we need to build a great speech-to-text model … that we can use for all kinds of different things, including video search.

The speech recognition experts that we have say: If you want us to build a really robust speech model, we need a lot of phonemes, which is a syllable as spoken by a particular voice with a particular intonation. So we need a lot of people talking, saying things so that we can ultimately train off of that. … So 1-800-GOOG-411 is about that: Getting a bunch of different speech samples so that when you call up or we’re trying to get the voice out of video [such as from YouTube], we can do it with high accuracy.

That’s right–Google told you the product was doing one thing, but in actual fact it was always intended to be something entirely different.  The real action was in the background where users couldn’t see it.  If Marissa Meyer hadn’t let it slip in an interview, you might never have known.

If you have a Content ID contract, check out this language in paragraph 2:

By providing Reference Files, you grant Google a non-exclusive, royalty-free, limited license to (a) store, copy (including the right to make temporary cache and storage copies), modify or reformat, excerpt, analyze, use to create algorithms and binary representations, create ID Files and otherwise use those Reference Files, the ID Files and the associated metadata in connection with the System

And there it is:  “otherwise use”.  Pretty broad grant of rights, eh?  You could say that “in connection with the System” is limiting, but how would you ever know what “in connection with” means?

Remember Google Books?  Ever heard of “corpus machine translation“?  Google uses the scans of the tens of millions of books it stole from authors in the background to improve its translation algorithms.  If the authors had brought their case about that, do you think the court would have been so quick to find this obviously massively commercial application a fair use?

Bevo ≠ Unicorn King

Once again, YouTube has scammed their way past artist objections such as those in Maria Schneider’s post and Irving Azoff’s open letter.  I think this is partly because the whole Content ID system is such inside baseball–once you accept the idea that requiring artists to use these legacy DMCA tools is even acceptable, which I don’t.  Reporters just don’t know what questions to ask.

Now they do.

 

%d bloggers like this: