Archive for the ‘notice and shakedown’ Category

Internal Warner Music Memo Shows Google’s Notice and Shakedown Business as Usual

May 6, 2017 Comments off

If they’re not funding terrorists, they’re shaking down artists and songwriters….

Music Business Worldwide posted this internal memo from Warner Music chief Steve Cooper about Google’s DMCA abuse and the effect of YouTube’s notice and shakedown negotiation tactics.

“YouTube has a bigger audience than any other streaming service, which presents huge opportunities for the creative community, and we’re always hopeful about the future. But our experiences during these negotiations were proof positive of the acute need to clarify ‘safe harbor’ provisions under US and EU copyright legislation. That’s the only way to conclusively close the gap between the revenue YouTube generates and what songwriters, artists, publishers and labels make in return.

Our sustained investment in new music and the pace with which we embrace emerging technologies, is resulting in some promising growth. However, ‘safe harbor’ laws that don’t protect artists, songwriters and rights-holders remain the weak link in the music ecosystem. We’re now calling for change more loudly than ever.”

via Internal Warner Music Memo Shows Google’s Notice and Shakedown Business as Usual — Artist Rights Watch

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]

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.


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.]

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

June 29, 2014 1 comment

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

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

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

YouTube Publishing Agreement

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

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

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

YouTube Pub Preamble

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

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

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

And just think–we’re still on page 1.


Gideon’s Remix: First observation on why Veoh is bad policy

September 19, 2009 Comments off

I note that the quotations from Fred von Lohman, the Mystic Knight of the EFFluviati, that appeared in the press on the Veoh case were somewhat guarded. We learn from our spectacular defeats—Grokster in Fred’s case. The industry sentiment regarding Veoh reminds me of reaction to the lower court decisions in Grokster—this simply cannot be the law. And sure enough, it turned out not to be.

For independent artists and songwriters who have read the Anthony Lewis book, Gideon’s Trumpet, the Veoh case will have a familiar ring to it. (The book tells the story of Gideon v. Wainwright, the U.S. Supreme Court case that established the right to counsel of indigent defendants in state court criminal cases and essentially created the public defender system.)

Veoh is at odds with fundamental principles of American jurisprudence and our Constitution. If the decision were to stand, copyright becomes a Constitutional right without a remedy, kind of a “Gideon’s remix” denying the Constitutional right of copyright protection to those who cannot afford to defend themselves. Gideon’s remix is not a defense against the government, this time, but against vast commercial interests who will always outspend and intimidate independent artists and songwriters and who twist the laws of the United States into what is effectively a private and free de facto compulsory license—what we call “notice and shakedown”.

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat? I think we all know the answer to that one.

In light of the absurd result in both Veoh cases, I thought this post by one of the Children of the Lessig God was of interest (discussing the responsible “Take down stay down” policy adopted by MySpace):

“Under [the Myspace ‘take down stay down’ policy] copyright holders remain responsible for identifying the content themselves. MySpace will not do the initial filtering without individual notices. This might fall a bit shorter of fulfilling the content industry’s sweetest dream, but then again, a major breakthrough.”

Requiring an online service provider to “filter” is not a “dream”—it’s called getting a license. This is what legitimate companies do every day. There are entire licensing regimes built to respect the rights of authors and to facilitate licensing and payments. Pandora does it, iTunes does it, Hulu does it, Amazon does it, and Myspace does it. Why can’t Google do it?

But wait, there’s more. “Fingerprinting and other copyright filtering technologies will remain a hot topic in the near future as more market leaders are expected to be drawn into this copyright swamp. The mechanism adopted by MySpace gives rise to difficult legal questions. The blocking of subsequent attempts to upload the content is automatic and circumstances-insensitive. It does not require any further statement or declaration (under penalty of perjury or otherwise) by content owners. Yet posting the same work by one user in an infringing manner does not mean that posting the same work (or a portion thereof) by another would necessarily infringe as well. The latter could be protected under the fair use doctrine, for example, if the second attempt to post the file actually incorporates a smaller portion of the work as part of a derivative work aiming at criticizing the content owner.”

Yes, it’s possible that 4Chan and Anonymous might be prevented from criticizing the content owner by using the works controlled by the content owner in a raid (as Anonymous will tell you, “because none of us are as cruel as all of us”). But that hardly will stop critical speech, as we have seen. The incredibly antagonistic and frankly childish policies of Google on YouTube of stamping their feet and posting videos with no sound when they didn’t get their way with Warner Music Group clearly is an example of that workaround. (And also begs the question yet again—where is the board? But that is another story.)

This free speech business is a canard, of no lesser magnitude that Lessig’s “Starving Artist Canard”. The overwhelming majority of takedown notices are sent for two categories of works: Those that are taken in their entirety to profit the online service provider at the expense of the creator in the hope that the creator will take long enough to find the infringing activity that the provider can squirrel away some money during the free ride, and those that are trivial copies by users that still profit the online service provider in the aggregate and still at the expense of the creator during the free ride. Forcing a takedown in these situations has nothing whatsoever to do with free speech and everything to do with stopping a free rider.

The Veoh courts seems to believe that it was the intention of Congress in crafting the DMCA “safe harbor” that copyright owners large and small must ferret out all copies of works hosted anywhere in the vast expanse of the Internet in order to notify online service providers of their existence—even when the provider knows or should know that the copyright owner has not authorized the reproduction and distribution of a work.

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I find it difficult to believe that it was the intention of Congress that hundreds of thousands of takedown notices should be sent annually by those who can afford to do so and that those who cannot afford to do so must suffer the indignity of infringement in silence. Only to be told that “you can’t compete with free.” (Which, by the way, is one of the more illogical statements in recent memory–it’s theft you can’t compete with, not the “free” that the creator has no part in permitting.)

Notice and takedown is not intended to be a game of catch me if you can, or catch me if you can afford to. It’s not Gideon’s remix.

Veoh: Is continuous monitoring really the law? –updated

September 14, 2009 1 comment

We’re going to take a look at this opinion much more closely, but the Veoh decision came down–wrongly and weirdly. Unlike the Viacom case, both the Io claim and the UMG claim did not involve the extensive DMCA notices sent by Viacom. I would think–and I think it’s worth thinking about some more–that would make a huge difference.

I have written at some length over the years about what I called Google’s “notice and shakedown” policy, a pejorative term I borrowed from my friend Rick Carnes. When reading Mary Beth Peters excellent testimony regarding the ominous implications (and possibly unconstitutional underpinnings) of the Google Books “de facto compulsory license”, I suddenly realized that was the description that we were looking for to describe “notice and shakedown”.

Register Peters told the Congress that “we will explain why allowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary. This is not to say that a compulsory license or collective license for book digitization projects may or may not be an interesting idea. Rather, our point is that such decisions are the domain of Congress and must be weighed openly and deliberately, and with a clear sense of both the beneficiaries and the public objective.”

One could easily say that the Lenz, and Veoh I and Veoh II cases were also creating a private compulsory license through the judiciary.

Veoh was handed a court ruling last year (Io Group v. Veoh Networks, Inc., No. 06-03926 (N.D. Cal. Aug. 27, 2008) when a federal magistrate in Silicon Valley ruled that the technology company was entitled to protection under the “safe harbor” sections of the Copyright Act from claims of copyright infringement brought by creators. The safe harbor protects an online service provider if the provider doesn’t know or should have known that infringement is occurring, and that it take steps to prevent repeat infringers from using the service.

According to some interpretations of this new law, copyright owners—from multinational corporations to independent songwriters–are required to stand at the ready on a 24/7 basis to police the Internet and identify unauthorized uses of their copyrights. Copyright owners are then required to notify these services of infringements.

One policy question in the Veoh case is who is in a better position to stop online infringement—the online service provider who is operating the service with millions in venture capital financing and access to the public financial markets, or an independent songwriter or a film studio. Should an online service provider be permitted to put their “head in the sand” and permit film clips or music videos to be uploaded because the service has not been notified about a particular digital file among millions of files, even though the service has been notified of infringement of the copyrighted work in the file.

For example, if I wrote a song called “I Love You” that was in a music video and we notified Veoh that the company was not authorized to permit any copies of that work to be uploaded to or downloaded from their system, should we also have to identify every single digital file that contained a copy of that digital work? The Veoh decision says that we—and not Veoh–would have to find each infringing copy among the hundreds of thousands, if not millions, of video clips on Veoh.

The judge’s order in the Io case permits Veoh to avoid having to screen uploaded content for infringing materials because Veoh’s software is designed—by Veoh–to make the uploading process “automated”. This obviously begs the question of whether Veoh has responsibility for putting in place a system that it apparently cannot control. Similar arguments have been made for post-Napster p2ps that use a distributed network designed to avoid a centralized location where responsibility for infringement could be clearly placed on the service provider.

The Io court tells songwriters that they must spend thousands of dollars that they can ill afford to spend trying to track down each infringing copy of their work on Veoh—even if Veoh knows that the songwriter has not authorized any use of their works on Veoh. This seems an extraordinarily harsh and one-sided result.

It is a far cry from the win-win relationships that have produced sustainable innovation for both technology companies and creators from companies like iTunes and Hulu.

While the Io judge claims to be furthering the intent of Congress in passing the notice and takedown rules, it seems hardly likely that Congress ever envisioned an industry based on what is essentially a copyright hack. I find it very hard to believe that a statute that was designed to stop free riding was imagined by Congress to itself become a negative externality. The Io ruling places companies that refuse or fail to obtain licenses at a competitive advantage to companies such as iTunes, Hulu and others that obtain permission before they permit content on their services. The same could easily be said of Pandora–another one of the good guys–in a slightly different context as the company relies on the statutory webcasting license.

It also legitimizes the “catch me if you can” business model of online companies that intentionally avoid licensing. This is not the way forward for legitimate companies to come together with sustainable innovation in the digital society.

As noted previously on MTP, it seems hard to believe that it was the intent of Congress that a company receiving 1 million notices should be able to continue to operate under a de facto compulsory license. While neither Io or UMG sent the statutory notices, plenty of people do.

New Orphan Works Legislation: From Each According to What is Not Nailed Down, To Each According to How Little We Can Get Away With

April 25, 2008 Comments off

The House and Senate both introduced new versions of the “orphan works” legislation (the “Shawn Bentley Orphan Works Act” named after the late AOL lobbyist). Why, you may ask? What is so important about “orphan works”? Do the songwriters, artists, photographers, illustrators, screenwriters, actors, directors you know come up to you in the street, strike a scream pose (a la Munch) and say “How can I live without orphan works?”

I doubt it. But you know who does. Three guesses.

As Google’s attorney, digital sophisticate and Lessig acolyte Alexander MacGilivrey put it in his testimony at the Copyright Office:

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

That statement was made on July 22, 2005—almost 4 months to the day before the Library of Congress announced a $3 million gift from Google for the Librarian’s World Digital Library pet project.

This is not new ground for readers of this blog–see “Unhand That Orphan, Professor“–but here’s essentially what the new law says that somebody—I’m not quite sure who, but I think their name is Google–is very interested in passing in this session of Congress (and during an election cycle at that). If some random person—or, oh, say Google–“finds” a work that they would like to use in the “remix culture” as Lessig calls it according to the editorial board of a leading financial newspaper (, they can more or less do it without permission if they can’t find the owner. Or as Google tells us on the record—use it millions of times.

Of course, they have to try to find the owner. Honest. Cross my heart and hope to die. They will really try hard. No one checks to see if they did, but they promise. Isn’t Google’s promise good enough for every creator in the history of mankind? Because this law applies to EVERYTHING.

There are some nuances to how little permission they need to get, but if we have learned one thing from Google it’s that they intend to push the rules to 150% of what the law allows, just like they do with YouTube and the “notice and shakedown” provisions of the DMCA.

Realize that Lessig has referred to out of print books as being “orphans” and you get the idea. Absurd, you say? True. And Google will probably agree—when you get a final non-appealable judgment against the Leviathan of Mountain View you silly little artist.

You have to also realize that Google and Lessig have been chomping at the bit for years to get this bill through the Congress. That means that they are poised like a dog on a scent for it to pass, and then it’s off to the races.

Google’s “No Reply” Standard: “I tried to telephone, they said you were not home, that’s a lie…”

(No Reply, written by John Winston Lennon and Paul McCartney, Administered by Sony/ATV Tunes LLC)

As Google’s General Counsel has said publicly: “These works include those for which the author or assignee of a work – the work’s “parent” – can no longer be determined, usually because the contact information included on the copyright registration is out of date.”

Now as anyone knows who has ever done chain of title research on a book, this is a truly pathetically ignorant statement. If the “address changed” standard were applied, then many, many motion pictures would never be made. There are companies that offer reasonably priced searches to give you good chain of title and have been providing those reports for DECADES. Now granted it takes 24 hours minimum, so everyone has to hold it for a bit, but these searches are the industry standard for songs, records and movies, so I don’t quite see how someone as important and all-knowing as the GC for the Big G missed it.

But wait, it gets better. “They may also include works that have been, for all intents and purposes, ‘disowned,’ either because any potential monetary value of the works has expired or because their authors simply are not interested in enforcing the copyrights on their works.”

What does “any potential monetary value of the works has expired” mean? This in the same statement in which Google’s General Counsel tells us “[o]rphan works represent an untapped wealth of information that can and should be made accessible to the public.” How can these two statements both be true?

Easily—the “orphan work” may have insufficient economic value to the copyright owner to keep a book in print or a record in the catalog, but it has plenty of value to Google who wants to free ride on the efforts of the writer, publisher, artist, songwriter, record company and music publisher–EVERYONE. A title can get taken out of release in the music industry when it still has many years of useful life left in it for licensing and other purposes–such as the uses that the orphan works bill wants to make subject to Google’s “good faith”–kind of like the good faith they’ve shown in their treatment of artists on YouTube, failure to account, snotty comments from Eric Schmidt, rude treatment of entertainment industry executives at the Googleplex, and on and on and on. But Google promises to conduct a search, kind of like they promised to have a robust filtering technology on YouTube. Cross my heart and hope to die.

And then I love this line: “…their authors simply are not interested in enforcing the copyrights on their works.” How about this little rephrasing: “…their authors simply are not interested in enforcing the copyrights on their works enough to take on a copyright infringement lawsuit against one of the largest corporations in America known for delaying tactics in its business, or–and MUCH more likely–the original work has been remixed so much that it’s impossible to discern in the derivative work.”

Anyone who has ever cleared samples on a hip hop record understands that “remix” problem, and this is particularly true with visual images that can be manipulated beyond recognition. This is not a secret–this is exactly why Lessig encourages the “remix culture” and Google’s “catch me if you can” spin on the copyright law. They KNOW it’s hard or impossible to catch anyone who has done an effective job of remixing. They aren’t all like Danger Mouse. And again–for visual images, it’s almost impossible to catch.

So Google wants a clear shot at being able—once again—to take everything that’s not nailed down and pay as little of their billions for it as humanly possible.

Who loses? Songwriters, artists, musicians, vocalists, producers, illustrators, photographers, copyright owners—everyone. Because you’re going to have to be constantly on the lookout for infringing uses of your works, just like you have to be now with Google’s interpretation of the “notice and shakedown” rules of the DMCA. And no artist can afford to do that in an environment where private property rights are very expensive to enforce.

The Man 2.0 strikes again. At least they used to just loathe and hassle us, now they rob us blind.

Just remember–the song doesn’t go “we built this city on semiconductors”. If you try hard enough, the music will eventually go away. Cross my heart and hope to die, and may the cat spit in your transformative eye.

More about this later as we have time to analyze the bills.

%d bloggers like this: