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So Much For the Public Interest: Sonos CEO @Patrick_Spence Reveals the Harsh Retaliation of Google and Amazon

January 19, 2020 Leave a comment

If you’ve ever been to the Huntington Hotel in San Francisco’s toney Nob Hill, you can’t miss the hotel’s famous restaurant called The Big Four.  The eponymous paean to 19th Century monopolists, “The Big Four” are railroad men: C. P. Huntington, Charles Crocker, Mark Hopkins and of course Leland Stanford, for whom Leland Stanford Google University is named.  The railroads of the 19th Century were in many ways the Internet of their day–he who controlled the American railroads controlled the life blood of the world’s economy.  And I do mean “he.”

One can just imagine little Larry and little Sergei sitting in the clubby Big Bar and letting their imaginations run wild with dreams of how they, too, could dare to be as ruthless as these four cutthroats…sorry…titans of progress.  Yet The Big Four would be salivating at the thought of the level of monopoly profits that Google has been able to extract from the economy during the “Stanford window” (being the period of time that a group of companies can pillage their competitors before the government stops them, either through the courts or by an act of Congress).

But those dreams all came to a head on January 17 at a field hearing of the House Judiciary Committee’s antitrust subcommittee at the University of Colorado Law School.  You can see the video of the event above.

Sonos CEO Patrick Spence was one of the witnesses.  It’s not so easy to find the written witness statements, but I tracked down Mr. Spence’s statement which is worth reading.  Recall that since 2002 Sonos has made a home speaker that supports a multiplicity of music streaming services.  A Sonos speaker looks an awful lot like Amazon’s Alexa speaker or the Google Home speaker, but predates each by many years.

Mr. Spence summarized the Sonos business model:

Our business model is simple — we sell products which people pay for once, and we make them better over time with software updates. We’ve achieved success without trying to monetize the data of our customers. We live by the mantra that if we keep making great products, customers will recognize that, and come back and buy more over time.

In other words, the data scraping that is at the heart of Google and Amazon’s trillion dollar market caps is not part of the Sonos equation.  Surveillance capitalism is not the prerequisite for success.  Neither is wardriving through every loophole in user expectations of privacy, advertiser fraud or copyright.

Mr. Spence warns the Subcommittee in a way that is very familiar to artists.  The size and scale of these surveillance capitalists is a self-fulfilling perpetual motion machine on steroids.   Allowing them to run loose on the public without regulation makes about as much sense as it would to have put The Big Four in control of the Interstate Commerce Commission (that was created for the public to resist the anticompetitive passions of the railroads).  Mr. Spence explains the danger (in a passage reminiscent of the seven anonymous amici in the Microsoft antitrust case)(my emphasis):

I welcomed this Committee’s invitation to testify because I’m gravely concerned that the market conditions that allowed Sonos to innovate and thrive — and many smaller companies like us — are endangered by the rise of a small group of companieswith unprecedented size, scale, and dominance. And although I appear with a bit of trepidation as it may impact the willingness of these companies to provide us access or to partner with us, Sonos is strong enough and successful enough to say what goes largely unspoken, but remains very much on the minds of countless tech entrepreneurs at smaller firms and people thinking about starting new businesses.  One reason they do not speak up is that they’re afraid of how dominant platforms could retaliate against their businesses. [W]e also know from hard experience that they have come to use the scope of their platforms and their overwhelming dominance in certain markets to unfairly disadvantage competitors and squelch potential competition. 

Mr. Spence’s concerns will resonate with any artist who has had to deal with YouTube’s licensing practices–remember Zoë Keating’s experience with YouTube’s intimidation tactics:

My Google Youtube rep contacted me the other day. They were nice and took time to explain everything clearly to me, but the message was firm: I have to decide. I need to sign on to the new Youtube music services agreement or I will have my Youtube channel blocked…. What should I do? As much as it makes me grind my teeth, does having all my music forced onto Youtube’s music service really just not matter all that much? Should I just close my eyes and think of England?

The Subcommittee hearing is another sign post along the path of stopping these anticompetitive and loophole seeking practices.  Because make no mistake–if Google will not only solicit a showdown with Oracle over Google’s tortured interpretation of verbatim copying as fair use but also prefer to litigate with Sonos rather than change Google’s tactics in the marketplace.  Google will definitely leverage that fear of retaliation among artists.  Sometimes it backfires, like it did with Le Tatou’s expose of YouTube’s tactics against YouTubers over the European Copyright Directive (Ce Qu’on Ne Vous Dit Pas Sur l’Article 13  (What No One Tells You About Article 13)).

But it’s more likely that fear of retaliation will result in many, many artists choosing to take the abuse rather than engage in Google’s game of chicken à la lawfare that they cannot afford even if they could withstand the retaliation.

Judge Leval said of the fair use defense that the primary question is whether the otherwise infringing use contributes to the intellectual enrichment of the public.  This utilitarian public interest test is largely applicable to competition law as well (if not all public laws).  So how do Google’s business tactics in crushing opposition from Oracle to Sonos and beyond further the public interest?   They don’t.

Mr. Spence sums up the problem facing lawmakers and the courts:

This is one of the many reasons we believe that [Congress] needs to act urgently to support the next set of big ideas and to create a fair playing field for smaller technology companies. If we do nothing, America’s leadership in innovation will suffer with inevitable negative long-term consequences for American consumers and the economy as a whole.

Instead of being impaled on the fangs of The Big Four, we just get the FAANGS.  (Facebook, Amazon, Apple, Netflix, Google and Spotify.)

The Dopamine Delivery Device: The Android/Fair Use Connection

January 17, 2020 Comments off

If you’ve ever seen The Insider starring Russell Crowe you know the story of Dr. Jeffrey Wigand, the whistleblower’s whistleblower.  Dr. Wigand worked for one of the Big Tobacco companies (Brown & Williamson) to help them perfect nicotine addiction.  He eventually couldn’t take it anymore and went public with his inside knowledge.

Dr. Wigand identified cigarettes as a “delivery device” and his former employer Brown & Williamson as being in the nicotine delivery business.  In Wigand’s 60 Minutes interview, Mike Wallace described the process:

Dr. Wigand says that Brown & Williamson manipulates and adjusts that nicotine fix, not by artificially adding nicotine, but by enhancing the effect of the nicotine through reuse of chemical additives like ammonia, whose process is known in the tobacco industry as “impact boosting.”

Of course one of the problems with addictive behaviors is that the people who need the information most are the ones least disposed to hear the truth…because they’re addicted.

So it is with smartphones, and particularly Google’s Android.  As is well-documented now, smartphones are a key element in the behavioral addiction which many believe (and studies back this up) is just as addictive as substance addiction like nicotine.  Ever notice the similarities between the little Android R2D2 and Joe Camel?

That’s right–smartphones are a “delivery device” for the dopamine rush at the core of the addiction.  In Google’s case, Android smartphones are the gateway delivery device for loosening user inhibitions about giving up their private information to Google.

So how to enhance that addiction, how to make it “impact boosting” like Brown & Williamson’s chemical additives?  One way is with music, the ultimate honeypot for data scraping.  And that data is so valuable and the addictive properties of music are so pervasive that Google is willing to risk a lot to get as much of it as they can as fast as they can.

Including distorting copyright exceptions into loopholes that Congress never intended and in the case of fair use really have no precedents.  Fair use is at the core of Google’s commercial intentions, and at a massive scale.

Fair use gets them content, content gets them addiction, and Android gets them Google accounts that they can use for very precise data profiling and aggregation.  So Google’s fair use concepts are transformative alright, if you think Dr. Frankenstein transformed the monster.

It’s easy to understand why Android is so important to Google’s business.  It’s a delivery device.  And if you don’t think it’s true, check yourself for “cellphone vibration disorder.”

Not Very Bright: Things are out of hand at YouTube, just they way they planned it

December 29, 2019 Comments off

To paraphrase “Deep Throat” from All the President’s Men, don’t believe the myths the media has created about Google.  The truth is, these people are not very bright and things got out of hand.

Bloomberg’s and  have written one of the most revealing stories yet about just how out of control YouTube really is and just how incompetent YouTube CEO Susan Wojcicki is to handle it all (“Inside YouTube’s Year of Responsibility“).  (How Susan W came to have the YouTube job I’m sure has nothing to do with being the ex-sister-in-law of Google founder Sergei Brin.)

It boils down to this:  Google has been caught out.  YouTube was founded on the usual Google bedrock principle–steal everything.  Beg forgiveness if you get caught and emote about innovation, free speech, and any other hackneyed shibboleth that contributed to your D grade in freshman English comp from those teachers who didn’t understand your true brilliance.

Those “principles” may work for the Boys Who Wouldn’t Grow Up whilst inside their Mountain View bubble, but it was only a matter of time before the public began to catch on.  And the apocalyptic algorithm is that more the Google scaled, the more likely it was that the public would catch on like an appointment in Samarra.  When that happened, somebody may find out how bad it really is behind that curtain.  Because the truth is, these Googlers are not that bright, and things definitely got out of hand at scale.

So it was only a matter of time.  This is important because Google’s YouTube is the largest video search platform in the world and is the second largest search engine–right behind Google.com.  Unless you want that corrupting influence being piped into your children’s brains, you may want to think about how to stop it.

That ticking clock resonates in one of the most telling quotes in the Bloomberg post from YouTube CEO Susan Wojcicki:

“If we were held liable for every single piece of content that we recommended, we would have to review it,” she said. “That would mean there would be a much smaller set of information that people would be finding. Much, much smaller.”

Ms. Wojcicki just described both the essence of the value gap and why YouTube is nothing like television no matter how many times Googlers aspire for it to be true.  YouTube is not “disrupting” television; rather it is corrupting television.  YouTube is television’s distorted mutant.

When Ms. Wojcicki says there would be a “much smaller set of information that people would be finding,” the clear implication is that there would be much less content for YouTube to sell ads against if YouTube took responsibility for everything on their platform.  You know, take responsibility like TV does.  (YouTube’s endless braying about “fair use” is misplaced–the issue is about taking responsibility before you get to the infringement that leads to the fair use defense.)

Ms. Wojcicki’s statement does not mean that just because the YouTube offering would be smaller it would be worse, which is the implication it seems she would like you to draw.  It doesn’t mean the status quo is “better” either, it just means that in an accountable future YouTube would take responsibility for YouTube being an honest broker.  It also doesn’t mean that anyone would be “censored” unless you think enforcing standards and practices on the digital equivalent of the public airwaves is “censorship” or you think artists protecting their rights impermissibly restricts speech.

Ms. Wojcicki’s statement also provides some insight into YouTube’s current crisis involving children using the service.  Because at Google, small is not beautiful–scale is beautiful.  And the consequences be damned.  Bloomberg observes:

[In addition to copyright infringement, currently] YouTube’s biggest challenge is kids’ privacy. In September, the FTC fined Google for illegally tracking children for its ads business, forcing significant changes to YouTube’s operations….The FTC is now rewriting its COPPA rules [the US law that protects children online] and has invited public comment. In a filing, Google told the agency it was worried about any laws forcing it to “identify and police” videos aimed at kids. The company was, in effect, arguing it couldn’t know for sure the age of its audience and shouldn’t be punished for that.

Let’s understand something–illegally tracking children for ads has nothing to do with standards and practices.  It has nothing to do with innovation, free speech or fair use.  Tracking kids for ads was not an algorithmic glitch, either.  This problem is entirely human-made and is entirely the result of choices made by humans who work for Ms. Wojcicki, if not Ms. Wojcicki herself.  The problem is made by the people who are supposed to be in charge, who stockholders task with making good choices for the company (in this case, Larry Page and Ms. Wojcicki’s ex-brother in law, see my NY Daily News op-ed on Google’s dual class voting stock).

Google wants all of the benefits and none of the burdens of operating a media business.  Their justification is that they do it online.  If kids or artists or advertisers get chewed up in the process, they’d have you believe that it’s not their fault.

In one sense, they have a point.  Regulators have allowed them to get away with a host of travesties for 15 years all based on a tortured reading of two safe harbors (Section 230 of the Communications Decency Act and the DMCA).  You can’t really blame Google for thinking that having established a business model based on corruption that has made a lot of people filthy rich, they should be allowed to continue to get away with the free ride.

YouTube profits from chaos and the sheer scale of so many harms to the society from a tortured expression of the important values of fair use to blatant child endangerment.  YouTube executives supposedly serve society, at least according to the nepotism of Silicon Valley royalty.

But if you expect them to meaningfully disrupt the highly profitable situation that they’ve let get out of hand at scale, the current executive team will disappoint if left to their own devices.

Google Says Don’t Break the Internet–Again–this time to Oracle at SCOTUS

December 26, 2019 Comments off

His Master had told him to call for help should a Wolf attack the flock, and the Villagers would drive it away. So now, though he had not seen anything that even looked like a Wolf, he ran toward the village shouting at the top of his voice, “Wolf! Wolf!”

As he expected, the Villagers who heard the cry dropped their work and ran in great excitement to the pasture. But when they got there they found the Boy doubled up with laughter at the trick he had played on them.

The Boy Who Cried Wolf, Aesop’s Fables No. 210

DBTI Lemley

Quick–how many times have you heard Google try to beat back challenges to their bad behavior with the old “Don’t Break the Internet” meme?  We’ve seen it many times, of course, but repetition doesn’t make it right and it definitely doesn’t make it true.

DBTI EFF

The EU Copyright Directive is a “Looming Catastrophe”

If there’s legislation, a lawsuit or some policy action that Google finds a commercial threat to their vast riches, especially including ill-gotten gains, it’s only a matter of time until they summon the academic and NGO chorus of Cassandras to bemoan, wail and rend garments over the single most important existential threat to humanity since the plagues of Egypt–breaking the Internet.

DBTI Orlowski

Breaking the Internet takes a few different forms including crushing innovation (or in the Googleplex, stealing everything that they can get away with).  And yet after a decade or more of this bunk, the Internet still trundles on, some how squeaking to get by despite Google’s breathless warnings.  Not to mention the multi, multi million dollar megaphone they use to broadcast their message far and wide from the halls of Congress to the children of Members of the European Parliament.

Google’s at it again, this time as part of the litigation involving its theft of copyrights from Oracle.  The problem for Google is that they can’t just run roughshod over Oracle the way they can practically everyone else, including governments.  We should be paying attention because for once Google may actually get punished in a way that hurts unlike the multi-billion fines in Europe that they absorb as a cost of doing business.

Here’s the story this time.  Google was getting their lunch eaten by Apple’s iPhone and needed to get Android up and running fast.  Google wanted to license a bunch of Java applications that were owned by Oracle.  You may say, what about Sun Microsystems which created Java?  Correct, but Oracle bought Sun so that’s how Oracle got involved.  And extra points if you remember who used to work at Sun Microsystems?  That’s right–UNCLE SUGAR!  Eric Schmidt his bad self.  Strange coincidence, yes?  The same Uncle Sugar who mysteriously resigned as Google’s executive chairman.  Uncle Sugar says, “Me, too!”  Boy we miss you Unk.

of-all-the-ceos-google-interviewed-eric-schmidt-was-the-only-one-that-had-been-to-burning-man-which-was-a-major-plus

The masked man says “Me, too!”

But I digress.  So Google supposedly creates some of its own Java-related software.  Let’s get this straight–Google could have developed their own platform with identical functions to Oracle’s Java as did Apple and Microsoft.  But–and this is really what I think the case is all about–Google made verbatim copies of several Java APIs that they couldn’t reverse engineer…sorry, I mean work around.  This all to avoid getting a license.  And you know how they argue that they got around those verbatim copies?

DBTI Shapiro

You guessed it–fair use.  Laughable, but no more laughable that Google’s whack a mole DMCA fake license practices they are fighting us on with their opposition to the CASE Act based on..you guessed it, fair use.  Breaking the Internet, etc.  It’s funny until you realize they are not kidding.

DBTI Internet Society

Google lost twice against Oracle in the case, but appealed its most recent failure to the Supreme Court of the United States, or “SCOTUS” as it’s known.  So Google’s big strong line in their papers is this:

Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications….[If Google loses the case, the ruling] will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.

Yep…law and order every time, marshal.  Google wants to wrap itself in the flag of those plucky “developers” who are just incapable of speaking for themselves so Google must do it for them as well as truth, justice and the American Way.  This is about as believable as Google positioning themselves to be on the side of artists because they paid some YouTubers to make propaganda against the European Copyright Directive.

censorship_square_of_doom1

Will innovation survive?  Will the Internet be broken?  Or did the boy cry wolf one too many times?  Will justice be done for once and done to Google?

Stay tuned.  There may be another Wreck-It Ralph sequel in the works .

 

Why Creators Should Care About Google v. Oracle in the Supreme Court–@artistrights Watch

November 26, 2019 Comments off

There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come:  Google v. Oracle.

[MTP readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion.  We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people dancing to Google’s tune.]

On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle.  But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.”  And when I say “Google”, I don’t really mean Google as a company.  I mean the insiders.  This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.

So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.

How did Google get sued by Oracle and not Sun?  According to Google’s SCOTUS brief (at 3):

Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.

Let’s not just blow past that statement.  (First of all, it’s not really true.)  That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights.  Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that.  Or said another way, 2+2=5.  And don’t you forget it.

You can see that Google would like to push that angle.

If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do.  That buyer then sues Google for those pre-acquisition infringements.  A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.

But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems.  As the amicus brief by the United States  tells us, one of the questions presented to SCOTUS is:

Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….

[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.

As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative.  Which is, of course, fair use.  Or was it a parody, I forget.

The brief by the United States disagrees, and so do I.

So let’s be clear:  This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can.  And then scream fair use.

You have to wonder why SCOTUS took this case.  I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.

 

Loophole Competition: Is Google’s News’ Richard Gingras the Counterpart of YouTube’s Lyor Cohen? via ArtistRightsWatch

October 14, 2019 Comments off

We’re all well aware of how Google uses self-manufactured loopholes in the DMCA safe harbor to enrich itself at the expense of artists, and run their loophole traps while appearing to “help” artists deal with the Google manufactured whackamole on YouTube with “tools” like Content ID.  (See Ellen Seidler’s teaching on this subject, Kerry Muzzey’s post about Content ID from an artist perspective, and Zoe Keating’s statements on the YouTube Content ID shakedown.)

What Google has also done is find someone out there who is willing to promote the corporate line on DMCA abuse, the Chief Loophole.  This person very likely gets paid a fortune in both cash and stock options to be the public face of Google’s destructive policies.  Or at least a fortune compared to the person’s former colleagues in the copyright category that Google is commoditizing and extracting value from with their loophole seeking behavior.

Google then spends money on a charm offensive directed at these former colleagues—but which falls short of providing the same wealth that they bestowed on the Chief Loophole.  They may have many reasons for keeping this class distinction in play, but the message is clear—if you truly go over to the dark side, beaucoup bucks await you.  Or it will seem like beaucoup bucks to you because Google’s loophole seeking beat you down so far it looks like up to you.

Yes, I’m describing Lyor Cohen at YouTube and Richard Gingras at Google’s Internet of Other People’s News.  Rather than embrace a rights-affirming and privacy-protecting philosophy, these two divisional Chief Loopholers shore up two of the principal sources of Google’s data wealth—news and music.

Lyor Cohen embarrassed himself to little effect as the face of YouTube’s assault on the European Copyright Directive.  Mr. Gingras is doing the same in what promises to be the opening act of a long offensive against the European Copyright Directive.

The Copyright Directive has been passed by a vote of the European Parliament and transposed into French law by a vote of the Parliament of France—which the multinational Big Tech bloc like Google lost abysmally by employing a bot strategy that seemed to be modeled on the tactics of the Internet Research Agency as discovered by several European newspapers including the London Times.

The crux of the issue for Mr. Gingras is that the Copyright Directive requires Google to pay a neighbouring rights royalty to newspapers whose work they use.  You may have heard the Google Alinsky-style semantical talking point of the “link tax”.

Google is now putting Mr. Gingras forward to be the Lyor-style face of its campaign against journalists and news organizations in France by throwing a new loophole in the face of the French government while at the same time stepping up its charm offensive by offering what certainly look like bribes to news organizations in Europe that play ball.

The loophole is Google’s use of its brutal market power to force newspapers to give them for free that which would otherwise attract essentially a statutory royalty.  Mr. Gingras is the face of this, a role for which we hope he’s being at least as well compensated as Lyor Cohen for doing what is effectively the same job—being the face of the charlatan.  The good news is that Google tipped their hand early in the transposition process so even France can go back and fix this competition law violation.

Thanks to the Google Transparency Project (full report here) we know that Mr. Gingras also brings a pot of gold to his version of the rainbow, either directly or indirectly, through spending on the ideation and flaring from the shill incubator:

The Google Transparency Project undertook the most comprehensive effort yet to collect all of Google’s payments to media organizations around the world in one place. The analysis included 16 different Google programs and related organizations and spanned more than a decade.

It revealed that Google and related entities have committed between $567 million and $569 million to support at least 1,157 media projects around the globe.  The analysis also identified another 170 projects supported by Google for which no funding information was publicly available, suggesting that the total amount the company has spent on media grants is likely far higher.

Google often boasts about its support for journalism, disclosing plans to spend over half a billion dollars on media initiatives since 2013. But Google isn’t always transparent about its spending, making it difficult to assess what the company is giving—and what it may be getting in return.

We haven’t seen Mr. Cohen waiving around this kind of cash aside from a few thousand euro we know about that was paid to some YouTube “creators” to produce anti-copyright directive materials.

Lyor really needs to do something about that disparity.  We’re way beyond YouTube “creator” studios now—user-generated never got hundreds of millions.  I wonder what Mr. Gingras makes by comparison to Mr. Cohen?

Must Read Guest Post by @kerrymuzzey: YouTube’s Latest Deceptive Tactic

August 14, 2019 Comments off

[We’re thrilled to have a chance to publish an important Twitter thread by composer Kerry Muzzey that crystalizes a number of phenomena:  How Kerry caught YouTube using Content ID as a tool to extend the period of time that they can profit from infringement (or the “piracy profit window”), how draining it is for indies to chase YouTube (the “ennui of learned helplessness”), and how the cost of chasing YouTube reduces (or erases) any income from the video monopolist (the “Great Streaming Disappointment”). Kerry also provides a timely illustration of both why we need copyright small claims and one reason Google is sending in their proxies to fight it.  We appreciate Kerry giving us permission to post his thread and for being “here for the long haul”.]

I’m an indie guy.  I would love to just spend my time making more music, pitching, demo’ing for jobs. But like all indies, I have to make a choice—do I let YouTube and others just rip me off or do I try to stop it despite the burdens.

Here’s a new YouTube tactic that I first thought was a mistake when it happened recently, but they tried it again today, so now I think it’s pretty much just “the new stall tactic.” 

I recently found a bunch of unlicensed uses of my music on a Chinese broadcaster’s channel: these were TV shows where my tunes were used as underscore and then the series were put on YouTube and monetized. 

It took a couple years for Content ID to locate these uses and  during that time both YouTube and the broadcaster were able to co-monetize a couple million views of these shows. 

When I caught on to what was happening, I did my takedowns through the Content ID dashboard (meaning that YouTube itself located the uses and presented them to me in my Content ID dashboard) but they didn’t process my takedowns, which was weird.

I emailed YouTube Copyright (there are no names and no direct contacts at Copyright/Legal & you can’t get a name or direct contact person).  “YouTube Copyright” said they needed confirmation of the titles of my works because there was something wrong with my metadata with these particular titles in Content ID. 

Spoiler alert: there was nothing wrong with my metadata: these same works have been active just fine for 6.5 years now, and suddenly when I have claims against a massive China broadcaster YouTube finds there’s a problem with the accuracy of my titles & my metadata when they never have before?? 

Back to my claim—the Music Department at YouTube confirmed that my metadata was fine and accurate after all, and deferred to YouTube Copyright. I sent YT Copyright my copyright registrations for the works in question, reaffirmed that my metadata was fine and reaffirmed the accuracy of my claims: 24 hours later those infringing videos finally came down. 

I thought this was a one-off thing: a glitch. Until this morning when I got a batch of the same emails  from YouTube Copyright saying that there was a problem with my titles and metadata relating to the particular songs that I had struck on another Chinese broadcaster yesterday: videos that have a collective 4,000,000 heavily-monetized views on them from a different one  of China’s largest broadcasters.

But there’s nothing wrong with my metadata or my titles.  These works have been just fine since Feb 2013. So suddenly, 6 years later, there’s a problem with these songs…on the same day when I catch a huge TV network in China having used my music in their shows that were then put on YouTube and co-monetized by YouTube for 2.5 years to the tune of 4,000,000 views, with forced pre-roll ads, forced intermittent ad breaks, bannering, and video-adjacent page advertising, all on a channel in China that has 3,500,000 subscribers and more than 400,000,000 channel views on it. 

I just replied to all of their “problem w/title+metadata” emails with my copyright registrations attached and a re-affirmation of my claims and asked them to lay off the stall tactics and just process my takedowns. Which is NOT gonna go over well with this heavily-monetized channel in China and they’ll probably falsely counter-notify on everything because that’s what usually happens with China. 

But you know what? YouTube has a China problem. And they know it. And they look the other way because they can make a ton of money on those infringing videos. 

The asterisk here, and the “watch this space” moment is something I’ve long suspected and now feel like must be true: YouTube says that it has the same detection thresholds for music in Content ID worldwide, but I don’t believe it.

I think that my continuing discovery of my music in these ex-US programs, years after the fact and only after millions of monetized views have happened, is building up a body of proof towards that theory. 

And if that’s the case – YouTube has a problem.  What happens if YouTube tightens detection thresholds in big ad-sales territories like China with major broadcasters for the purpose of avoiding detection so as to increase ability to monetize what they know is content with 100% unlicensed music? Then YouTube is violating the DMCA and eventually they’re gonna get busted. 

So if you’re a tech person or journalist who’s interested in this sort of thing, here’s the question I would pose directly to YouTube the next time you talk to one of their execs: Does YouTube set different music detection thresholds based on territory, channel subscribership and degree of monetization on a channel? 

Get them on the record. Record their answer, write it down, put it in your article, publish it. Eventually someone has to hold their feet to the fire.  Step 1 is getting them to go on-the-record with their lies or their admission of gaming the system for the sake of ad revenue. 

I’m an indie guy and would love to just spend my time making more music. But until YouTube stops making it OK for giant corporations to steal my stuff and co-monetize it with YouTube itself, I’m stuck in this muck. 

Here for the long haul, – Kerry

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