If she doesn't file a DMCA, they could not be sued.
Google isn't held accountable for the uploads of their as long as they follow those rules. Remember, if they _could_ be sued solely for content appearing on their site and even if no take down was filed Youtube (or any other content site) would likely not exist as they would have been sued out of business long ago.
Google is paying this person for use of their work. They have knowledge and it could be argued that they obtained a license. They want to renegotiate the terms of that license. The DMCA isn't a tool to be used to force artists to license their content on terms that favor YouTube.
The actual safe harbor text (17 U.S.C. § 512(c)(1)(A)):
i. does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
ii. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
iii. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.
It's certainly questionable whether Content ID gives Google "actual knowledge" of infringement happening. But the rule isn't that content only has to be taken down when given a DMCA notice. Once Google has "actual knowledge", they need to take action.
And I think that's the alternative that Google would do. Videos that match the Content ID would be removed. I think the issue is that the artist doesn't want to be so punitive to fans who are caught in the middle. Google knows that artists don't want to hurt their fans and is leveraging that against them. I don't think this would become a DMCA issue at all. It's more an issue of Google having the market power to be a price/terms setter. Google seems more than willing to use Content ID to block infringement, but also has the positioning to reply to the user, "this artist has decided you, the uploader who worked hard on that video, that you're not allowed to use their music. Maybe you should hate that artist and like one of these other artists. . ." A bit of hyperbole, but you can see how an artist wouldn't want to position themselves that way.
What I find more interesting is 17 U.S.C. § 512 (i):
(1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider —
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical measures.
(2) Definition. — As used in this subsection, the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and—
(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;
(B) are available to any person on reasonable and nondiscriminatory terms; and
(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.
----
Thus, they don't have to provide Content ID themselves, but they have to allow for a third-party Content ID that doesn't have all the strings attached.
> If they no longer have a formal relationship with the
> artist and no longer have the artist's original works to
> have the Content ID system compare to
That sounds like the mother of all punitive damages lawsuits waiting to happen.
Somewhere a scumbag attorney's wallet is getting warm, and he has no idea why.
As for them no longer being able to identify other instances of your work after you sever the relationship with Google: once you do so, they've got no license from you that authorizes them to keep authoritative copies of your works around.
"My, it's a nice collection of songs you have here...it'd be a shame if you didn't accept these pennies for the effort we are going through to give them to you..."
Considering a sync license is a very solidly established issue (just ask Monster vs. Beastie Boys), I think YouTube is really setting the stage for a hard, hard reality check.
[1]: http://www.prosoundweb.com/article/waves_audio_wins_case_aga...
Whether she'd want to or not is a different question, of course. But let's assume she has some of those "special cases" she mentioned -- an unauthorised advertising campaign or two, maybe -- as handy targets with no moral or commercial dilemma attached.
I imagine YouTube would suddenly get a lot fewer contributions if legitimate copyright lawsuits resulting high awards of statutory damages started landing on uploaders' doorsteps, even if Google themselves only participated by providing evidence under some sort of disclosure procedure or court order.
Meanwhile, Facebook is getting serious about taking on YouTube. Maybe they'll offer a better deal.
It also isn't clear whether they would even have any liability without the safe harbor, because it was put into place early enough that we don't really know what happens without it. But you don't generally expect the Post Office to be liable for what people send in the mail.
What part of 47 U.S.C. Sec. 230 do you read as a requirement to identify the uploader?
Obviously a plaintiff who wants to sue the uploader might be able to get a subpoena (assuming the webhost can identify the uploader), but how is that different from the DMCA?
It's not as infeasible as you might think; artists' cooperatives, as a business structure, have a long history, and creating a digital space is, in many respects, more cost-effective than a brick-and-mortar location.
It would need a benevolent, and very wealthy, collection of artists or sympathetic patrons to fund growth, or it would simply be out-gunned by the rest of the industry that actively works against artist independence.
One of my businesses is a worker-owned cooperative. It has challenges that are completely novel to me (having started two small traditional corporations before that), and they're very difficult to overcome. Herding cats is hard, operating under the cooperative principles is hard(er than doing it all for profit), and raising money is effectively impossible for many types of cooperative, as far as I can tell.
Building a competing music or video service to YouTube and Spotify would require tremendous resources, and without the big cash-out promised by those ventures, I don't know how one would make it work.
I'd love to be wrong. But, I've been an indie and DIY and punk music fan almost my entire life, and I've worked in the music industry. It's better than it's ever been for independent artists in many regards, but Google and Apple aren't on the side of artists all that much more than the historic record industry was/is, and it's very hard to have them as an adversary. Would you want to try to compete directly with Google or Apple? And, if you were someone with tens of millions of disposable income would you want to risk it on a venture that is likely to fail and if it succeeds won't do much more than pay back your investment capital and a small bit of interest?
The parallels are stunning in this case. Thank you for mentioning your perspective, as I think it bears repeating that the "music industry" has always been like this - the names and methods may look different, but the model is the same. Ain't nobody signed to iTunes or YouTube, near as I can tell...
It's a nightmare, though. It is ruled by the bureaucrats running it, in conjunction with the artists that actually profit from it, i. e. old people with a large back catalogue. It's constantly fighting with the businesses using music, i. e. youtube still blocks 90% of videos with music because they haven't agreed on prices. Clubs might have to close because they've tripled prices recently. Small bands sometimes sign up, only to find out they actually have to pay to play their own songs, and through the magic of the most convoluted payout formula ever, might not actually get as much back as they pay in. Even if they get something out of it, it may take 18 months.
Even if they didn't build and run the platform themselves directly (due to the fact that a bunch of artists have better things to do) - if they contracted out the development and maintenance to a third-party company - they'd have ownership over the platform, be able to switch maintenance company, and therefore take their fanbases with them if things start going wrong.
This is an egregious abuse of copyright. It is not ethical to encourage this.
Google has DMCA takedown capabilities. I'd suggest simply hiring a third party to monitor Google and send appropriate take-down notices. Then, on an annual basis, submit the invoice to Google. It's dirty pool, but then again, when has the music industry ever been a transparent and constructive and profitable enterprise for anybody outside of the top 1% of performers/acts/songwriters?
I doubt Google would be liable for such expenses.
I know that sounds sarcastic, but it's actually how a lot of artists behave and speak.
To add a firsthand story, I am a part of an online music community, OverClocked Remix (http://ocremix.org ), that had to craft a formal content policy agreement for legal reasons to protect itself in the event a game publisher/rights owner decided to sue the site for hosting rearranged music from one of their games (the site only sells officially licensed music - the rest is free), or if an artist imposed many fickle demands such as 5+ artist handle change requests or a sudden takedown request of a track, which would affect distribution methods such as torrents. The site solicited feedback from the community, and we came to the decision to require a non-exclusive right to distribute with an identifier of our copyright (meta information in ID3v2 tags and the file name), no DRM), while the artists would maintain full rights of their track. Termination of distribution is left at the site's hands.
A few artists balked at this, and expressed strong disagreements based on the view that artists should retain full rights over distribution. They ultimately signed and most, even those who complained, ended up content with it.
It's extortion. So your characterization is flawed. When videos are not popular, unsurprisingly, you aren't selected to be extorted.
In the business world, this is known as negotiation. It's normal and ethical. Here, it's like being in a big store. You can buy the thing on the shelf or not, but you don't get to haggle over the price.
Zoe wants to haggle over the price until it's something convenient for her.
> I'd suggest simply hiring a third party to monitor Google and send appropriate take-down notices.
This is abuse. This will have a chilling effect on free expression.
Shame on YouTube, quite seriously - I didn't cost Daft Punk anything!
But I would certainly object to calling a Starbucks purchase a "negotiation". It is not.
I do see your point, though. It's not really a negotiation. There's not enough money involved to be worth negotiating over. It's a service being sold.
Isn't this the exact opposite of a negotiation? By definition, doesn't "negotiation" imply that both parties enter into a discussion in an attempt to reach an agreement.
When you buy a cup of coffee, Starbucks doesn't force you to sign a legal document saying that you will only drink Starbucks coffee for the next five years, or that whenever you buy a cup of coffee from somewhere else you must simultaneously buy a cup from Starbucks. Also, if you refuse to buy the cup of coffee, Starbucks will not post your picture in every branch in the country to prevent you from ever buying a cup of coffee from them again.
That happens in every line of business and we accept this. Why is this one different.
If any other online hosting service (with substantial network or lock-in effects) changed their terms to give themselves rights to host and slap ads on any of your other public output there would be an outcry. Why is this one different?
cough cough Facebook cough cough
Right now, YouTube is already in music business. They are just shifting model.
Google is, however, making money off of content to which they do not hold the copyright or permission. That's unethical.
Bear in mind that there is not and is unlikely to ever be any kind of system that can determine what color your bits are with any kind of reliability.
For comparison, Best Buy purchases the CDs outright from the Publisher/Label/Artist collective, and often sells below cost (first week release) to incentivize customers to patronize their store. In your mind, should Best Buy be taking a cut of the Publisher/Label/Artist agreement like YouTube is proposing in this case?
Unlike Best Buy, YouTube can only guess at who the creator is. Best Buy has the luxury of a known supply chain.
YouTube effectively has monopoly status as a "Videos-with-music" service. iTunes/Spotify/Pandora/Beats/Deezr/Rdio are a different service class, so don't even try and throw those into the pot, because that won't fly.
There are other choices available to them, they weren't forced into this one. They chose it because it's easy for them, and most importantly, it allows them in rapidly increase the amount of user-generated content they offer.
Bear in mind that determining the legal status of a given bit of IP is generally the slow and expensive work of a squadron of attorneys.
That fact that it's slow and expensive is only an issue because it conflicts with YouTube's business model. Frankly, that's YouTube's problem.
If your intent is to have a chilling effect on free speech on the internet, requiring a huge and messy legal process to publish something is a good way to do it.
I know that sounds sarcastic, but it's actually how a lot of technology firms behave and speak."
- Kalium's Argument, Paraphrased
Unscientific sample, obviously. I'm also not arguing that Zoe should accept what YouTube is offering. Just that YouTube isn't obligated to offer her want she wants.
Tell you what. Want to start a company offering distribution services to artists on the terms they want? Sounds like your kind of thing. I'm sure artists, publishers, labels, and customers will all love it and shower it with money.
So, no, I'll stick to the business of creating things, sharpening my National Forensics League trained debate skills in forums such as this, and reminding myself that I do these from my soul. I gain absolutely nothing by engaging with you, other than heartache at the state of affairs in this world, but it comes from within and I choose to embrace who I am. I hope Zoe succeeds in whatever she does, and applaud her for trying, especially in the face of hostility such as yours.
I haven't thought back to Forensics in a very, very long time. Geez.
If you think my attitude is hostility, then I submit that you could stand to benefit by reading my comments more carefully.
EDIT: Also, DistroKid doesn't allow me to set my own terms. It doesn't look like what I proposed at all.
How the copyright system influence this is (to my mind) uncertain. The system may be positive, or it may be negative. There isn't sufficient research nor natural experiments to know. I strongly suspect some level of copyright protection is positive, but there are too many variables to be able to be certain.
Vimeo from conception made an ethical stand to get rid of all content that wasn't directly uploaded by the creator.
YouTube from conception decided to not only allow but to itself seed the network with content that its submitters didn't create.
YouTube ended up having more content than Vimeo and thus more users even though Vimeo was first to market and had a much better product and user experience.
YouTube won because it decided to ignore the ethics of distributing content that it had no rights to.
They were from the very beginning and still remain an unethical company when it comes to profiting from other people's copyrights.
Bear in mind that there is not and is unlikely to ever be any kind of system that can determine what color your bits are with any kind of reliability.
There are many forms of smart contracts and decentralized digital asset management systems that could be utilized to create an open platform for publishing and claiming ownership over digital goods. All it takes is software willing to opt-in to these contracts and people who would rather use an honest system over a dishonest system.
Systems that subsidize the storing and distribution of digital media with advertisements never allow for the creators to have any power in the conversation about their digital rights. They just get blanket contracts written by the largest rights-holders.
YouTube is designed for consumers and not producers. It is in the DNA of the product. It can't be removed. It will be its undoing.
You almost definitely couldn't successfully sue (Safe Harbour). You could file a DMCA takedown, though.
The first problem is that YouTube is effectively a monopoly. The app is default installed on 2/3 of all smartphones, and the server bandwidth is subsidized by Google so that competitors really can't get traction. If we had a viable YouTube competitor, these terms would get smashed.
The second problem is that DMCA takedown is an unfair burden on the artist. After you have to file some number of the things over time, it should be considered a willful infringement by the service if it is collecting money.
Instead, Google gets to have it both ways: it gets to extract money while sitting behind the DMCA as a shield.
"Common carrier" is an ISP term, it doesn't apply here anyway.
Google won't be liable as long as they (1) aren't aware of the infringing videos and (2) take them down after receiving a DMCA complaint. I don't see how their ability to block them changes this - it's pretty established that these services are not required to proactively monitor their content.
After you have to file some number of the things over time, it should be considered a willful infringement by the service if it is collecting money.
That would kill any user content service that has ads, not only Youtube. How exactly do you propose they'd do such a thing? ContentID is far from infallible, and many sites can't even afford to build such a technology - in fact, if you required automated takedown based on content recognition, you'd only be strengthening Youtube's position.
Instead, Google gets to have it both ways: it gets to extract money while sitting behind the DMCA as a shield.
And the phone service gets to charge money when criminals place calls to conspire to commit crimes. So what?
By the way, I agree that this move is pretty shitty by Google. No argument there.
Asking what another comment asked above this thread - doesn't ContentID exactly fill the requirements for clause (1) - Google knows which videos are potential infringement.
Isn't that what Bandcamp is? And SoundCloud, and probably gazillion other similar services?
Now it's a subsidiary of another studio. Go figure.
If she doesn't help overturn this, Google will just keep doing it.
Yes, this is the standard problem. She, individually, has to take the hit so that the musicians, collectively, benefit. It sucks.
The independent artists really need to get together and build their own service with the terms they need so they don't have to keep fighting Google, Spotify, etc.