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
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.
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
[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.
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.