Google and copyright law

Here’s how Zoë Keating describes these new terms for Music Key:

“1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description [i.e., user generated] will be automatically included in the music service, too [i.e, Google’s Music Key streaming service].

2) All songs will be set to “montetize”, meaning there will be ads on them [and the artist has no choice in the matter].

3) I will be required to release new music on Youtube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

5) The contract lasts for 5 years.”

Why is this so terrible?

1.  YouTube allows certain artists and labels with special YouTube accounts to have access to its ContentID system.  ContentID tracks user generated content and allows artists to monetize or block that content in an automated way.  While YouTube creates a whack a mole problem by indiscriminately allowing user generated content to be posted on YouTube, ContentID provides a very imperfect solution to the problem that YouTube created.

   This is important because the new terms that are being forced on artists like Zoë ties access to the Content ID system to participation in the new Music Key service.  Artists who refuse to participate in the new Music Key service would lose the ability to “monetize” (i.e. earn revenue) from the use of their songs on YouTube.  Further, artists who reject the Music Key deal would no longer be able to block unauthorized uploads of their music on YouTube–unless the artists track down each upload and send a separate DMCA notice.

   What Zoe was told is pretty much exactly what the indie labels were told last year according to Rich Bengloff of A2IM:

   Our members have been informed that if they do not sign up to these revised terms, YouTube has given notice to them that YouTube will remove/block our members’ and their artists’ musical repertoire from the entire YouTube service, not just the new audio music streaming service. As YouTube is one of the leading music outlets the effect on our members on the promotion and monetization of their artists will be severe as the premium videos our members create will be blocked and the User Generated Content videos created by consumers using our members artists’ music will cease to be monetized via advertising. Our members will then be forced to engage in the “whack-a-mole” process of getting these non-monetized videos off of YouTube, so as not to detract attention from services that are paying our Independent members, as was not anticipated when Congress enacted the DMCA in 1998.

   In other words by saying “no” to Music Key, YouTube will still feature user generated videos on their service AND you won’t get any money.  Think about it. This is like saying “no” to a record deal but results in the label having your songs forever and paying you nothing!   YouTube is EVIL.
    

2. Because the new terms dictate that ALL your music must be available on YouTube as soon as you release it somewhere else,  there are no more exclusives!
   
   Your music cannot appear on the Internet anywhere unless it’s also on YouTube.   Why?  Because YouTube thinks they can use its monopoly position to enforce this tying deal against independent artists.

The Register article

The Register article should be taken with a grain of slat. Please take into account that Andrew Orlowski has a strong tendency toward yellow press style sensationalism, so comments for the article might be more a useful start then the article itself. Still the article provides valuable references reading which you can judge this case yourself. Here are some informative comments from  'YOUTUBE is EVIL' Somebody had a tape running, Google...):

VinceH

"Surely the uploader is violating her copyright? not Google."

Yes, but Google currently provides the Content ID system which allows such uploads to be identified (although not perfectly) and the artist can then either earn a little money from it, or block it.

What the guy in Zoe's transcript said is that if she doesn't agree to the new terms so her stuff's available on Music Key, she can't just carry on with the current system. Her own uploads will be blocked, and content ID will no longer be available - she will no longer receive any earnings from existing uploads by others that are recognised as containing her music, and she won't be able to use it to identify such uploads.

So although it's the uploader who is technically violating her copyright, Google are making it considerably harder for her to identify such violations - and when she does, the only option will be a DMCA take down, rather than allow the upload to earn her money.

Agreeing to the Music Key terms obviously solves that problem - but there are pitfalls with doing that, as explained in the David Lowery post Andrew linked, such as not being able to release anything online anywhere else initially, which they may want to do for exclusive promotions etc.

Badvok

@Anon Coward: "Do try to read what is writ, @Badvok."

I did, you obviously didn't. See the bit about "content owner attached to the agreement" which can be changed (as mentioned in the transcript) and if it was changed then nothing would be blocked.

She is still entitled to issue take downs for any Copyright infringements, Google will not automatically pay her when someone uses her stuff, they'll just tell her that someone is doing so instead.

Badvok

@VinceH: "Her own uploads will be blocked, and content ID will no longer be available - she will no longer receive any earnings from existing uploads by others that are recognised as containing her music, and she won't be able to use it to identify such uploads."

Re-read that transcript, Content ID would still be available and she would still be able to use the anti-piracy tracking for free.

Badvok

Yeah, totally evil that is, wanting to continue to pay an artist for their music even when someone else uses it in their upload.

The only thing they are actually saying is that unless the artist signs up to the new service terms then they'll stop paying the artist when someone else uses their content in an upload.

DavCrav

"unless the artist signs up to the new service terms then they'll stop paying the artist when someone else uses their content in an upload."

You mean, violate her copyright with commercial infringement? OK, so glad you have confirmed that Gootube is extorting her with threats of commercial copyright infringement if she doesn't sign. Exactly the same as "nice little place you have here, shame if anything happened to it".

NEWS CONTENTS

• 20150201 : YOUTUBE is EVIL Somebody had a tape running, Google... by Andrew Orlowski ( 'YOUTUBE is EVIL' Somebody had a tape running, Google..., Feb 01, 2015 )
• 20150201 : The Register ( The Register, )

Old News ;-)

[Feb 01, 2015] 'YOUTUBE is EVIL' Somebody had a tape running, Google... by Andrew Orlowski

The Register

... ... ...
Last week the cellist re-opened last year's controversy of the treatment of independent musicians and small operators by Google's YouTube service by asking her fans for advice. If she refused to sign the new terms, Google would stop paying her, but could continue to use her music on YouTube, she reported. If she signed, she'd lose control of her work. The contract would tie her down for five years. We reported her concerns here on Friday.

Over the weekend, Google disputed her account. Her claims were "patently false", it fumed to industry blog Digital Music News.

The transcript

However, Keating appears to have kept verbatim notes – strongly indicating that a tape was running – and she's now published the transcript of the conversation she said she'd had with the YouTube rep she'd been negotiating with for a year.

The transcript is available here. Keating wants to continue her current deal with Google as it stands – but that's not an option, as the rep makes clear in the transcript. She must sign the new contract and opt in to the Key music service. She can't run videos without monetisation. Google will "block" her (in the Google rep's words) if she refuses to sign, "but the commercial terms no longer apply".

"Yeah, it's harsh," the rep agrees in the transcript, before helpfully pointing out "a loophole". She can disassociate herself from her material and settle for the peanuts YouTube offers, "if you're not so concerned about revenue". The kind of revenue a successful artist might hope pays the rent.

What's at stake? Experts have contributed several excellent pieces on the spat. The core issue, as David Lowery points out in a must-read post, Google wants exclusive control over when and where an author's work appears on the internet.

He writes:

In other words by saying "no" to Music Key, [you allow] YouTube [to] still feature user generated videos on their service AND you won't get any money. Think about it. This is like saying "no" to a record deal but result[ing] in the label having your songs forever and paying you nothing! YouTube is EVIL.

That seizure of control hurts, explains writer David Newhoff, because it strikes the very reason Keating wanted independence as an artist. It's why she doesn't have a record label. (We're not sure if she has a publisher – her work is widely used in TV, film, theatrical productions and ads, and a publisher helps here).

Weaker copyright laws

Newhoff, too, agrees that The New Man seems very similar to the Old Man, the music industry we were told would die out.

"The new boss wears a new uniform, but he's just another boss. Only this time he has a worse deal in one pocket and a rock in the other."

Industry analyst Mark Mulligan, a strong supporter of music streaming services, thinks Google has become corrupted by absolute power. Google's actions wouldn't go very far in the marketplace if it had not been for the weakening of copyright, he argues.

+Comment

A familiar argument over the past 15 years is that copyright is a regulatory-style impediment wielded by large old companies to impede progress.

...New Man could get away with such actions as YouTube has attempted here: assuming control of global digital distribution against the artist's consent.

... ... ...

VinceH

"Surely the uploader is violating her copyright? not Google."

Yes, but Google currently provides the Content ID system which allows such uploads to be identified (although not perfectly) and the artist can then either earn a little money from it, or block it.

What the guy in Zoe's transcript said is that if she doesn't agree to the new terms so her stuff's available on Music Key, she can't just carry on with the current system. Her own uploads will be blocked, and content ID will no longer be available - she will no longer receive any earnings from existing uploads by others that are recognised as containing her music, and she won't be able to use it to identify such uploads.

So although it's the uploader who is technically violating her copyright, Google are making it considerably harder for her to identify such violations - and when she does, the only option will be a DMCA take down, rather than allow the upload to earn her money.

Agreeing to the Music Key terms obviously solves that problem - but there are pitfalls with doing that, as explained in the David Lowery post Andrew linked, such as not being able to release anything online anywhere else initially, which they may want to do for exclusive promotions etc.

Badvok

@Anon Coward: "Do try to read what is writ, @Badvok."

I did, you obviously didn't. See the bit about "content owner attached to the agreement" which can be changed (as mentioned in the transcript) and if it was changed then nothing would be blocked.

She is still entitled to issue take downs for any Copyright infringements, Google will not automatically pay her when someone uses her stuff, they'll just tell her that someone is doing so instead.

Badvok

@VinceH: "Her own uploads will be blocked, and content ID will no longer be available - she will no longer receive any earnings from existing uploads by others that are recognised as containing her music, and she won't be able to use it to identify such uploads."

Re-read that transcript, Content ID would still be available and she would still be able to use the anti-piracy tracking for free.

Badvok

Yeah, totally evil that is, wanting to continue to pay an artist for their music even when someone else uses it in their upload.

The only thing they are actually saying is that unless the artist signs up to the new service terms then they'll stop paying the artist when someone else uses their content in an upload.

DavCrav

"unless the artist signs up to the new service terms then they'll stop paying the artist when someone else uses their content in an upload."

You mean, violate her copyright with commercial infringement? OK, so glad you have confirmed that Gootube is extorting her with threats of commercial copyright infringement if she doesn't sign. Exactly the same as "nice little place you have here, shame if anything happened to it".

Anonymous Coward

Bullshit. From the transcript:

"...the content that you directly upload from accounts that you own under the content owner attached to the agreement, we'll have to block that content."

So UNLESS SHE AGREES TO THESE NEW TERMS, Google not just stop giving her monies but also block her access. But others, in clear breach of copyright, using her music is fine and dandy by Google (again, not monetised back to the artist).

Do try to read what is writ, @Badvok.

h4rm0ny

>>"The only thing they are actually saying is that unless the artist signs up to the new service terms then they'll stop paying the artist when someone else uses their content in an upload."

Isn't that thing actually quite a big thing? The artist in this case certainly seems to think so and should Google be able to force people to accept their terms or let them do what they want anyway?

keithpeter

Re: "Don't be evil"

"According to her website her husband is sick with lung cancer.

Dealing with that and the Google corporation must be horrific."

Hence the comment on the transcript I imagine ("Youtube is not at the top of my priority list right now").

So I just bought her most recent work as a 320 Kb/s mp3 download from the efficient and well organised bandcamp Web shop. I suggest we all do the same.

cap'n

The new man

It always surprises me how enthusiastically the new 'man' in the shape of Google is greeted in comparison to the virtual monopolies we had in the 90s and early 2000s. Google is far worse. It used to just be you had one choice what OS to put on your computer, but nobody then really did much about what you actually did with it after that. Google wants to control your phone, your computer, where you find information and gradually virtually everything you do with a computer. The fact they use a variety of open source software is not necessarily a positive, as shown here, appropriating the work of others for free and then monetizing it is their primarily business model, they've just moved on from just doing it with software, they now want to do the same with music and video rights.

auburnman

Re: The new man

The thing about Google at the minute is it's a dominant force in search - but it has very low lock-in for the average guy in the street. If they keep on this path of screwing content creators and burning goodwill they could be in for a massive disruptive shock.

To take Youtube as an example, there is nothing stopping a rival video service gaining massive traction overnight. If my favourite Youtubers were to rebel en masse and defect to some new service started by Amazon or NetFlix for example I'd follow them in a heartbeat - beyond the content it hosts there is nothing keeping me loyal to Youtube.*

*And even a fair few reasons that would push me to switch - the video player itself is good, but the rest of Youtube's layout can be a confusing PITA.

BillG

Re: The new man

Not just music & video rights. Images, documents, personal information and your first born.

And more than that. Ever read the book 1984? Google wants control for control's sake. Power for the sale of power. People that think like that are the ultimate evil....

veti

Re: The new man

To the AC who believes that Google doesn't massage search results in its own favour: try the following experiment.

Pick up a book by a well known author who died more than 75 years ago. (Charles Dickens is my go-to choice for this purpose, but there are plenty more.) Open the book at random. Find a phrase that's distinctive enough to be unique, but not profound enough to appear in anyone's collection of favourite quotes. (From Dickens:

"'What a mooney godmother you are, after all!"

"wiped his corrugated forehead from left to right several times"

"Suddenly a very little counsel with a terrific bass voice arises")

Then Google that phrase.

For the above 3 examples, there are lots of complete, easily-readable texts on the web. Yet the second result, in each case (as tried by me just now), is the Google Books hit - which is ugly and unreadable, and doesn't even link to a complete version of the text. (For the last of these, nine of the top 10 results point to books.google.com, despite the fact that it's far and away the least useful and accessible version on the web.)

ppawel

Re: The new man

The scariest thing in all of this is the fact that even though there are stories like this one, when you discuss with most of the "regular people" about Google, their opinion is always the same - it's the best thing ever. People love Google for GMail, Maps, Drive and you-name-whatever-service-they-provide-for-"free". Businesses love Google for Google Apps for Business. Because it all "just works" and is pretty and up-to-date etc. Hell, some people even donate their time and effort FOR FREE to Google - see Google Map Maker. Why the hell would you do that instead of contributing to OpenStreetMap, I will never know...

Looks like we all have a love affair with Google. Nothing left but a happy ending, right?

Boy, are we all in for a very very rude awakening some day.

shaolin cookie

Re: About that 'low lock-in'

@The obvious

Right you are. I was just in China recently and to my surprise they had blocked Google entirely, rather than just YouTube like earlier. I've already weaned my way out from Gmail and use StartPage for search so thought it wouldn't matter much. But the likes of StartPage and DuckDuckGo use Google results and are therefore also blocked, and no Play store on Android and no Google Maps were troublesome, and while Baidu works well in Chinese, in English it's even worse than Bing, and that's saying a lot. However, the main issue came from the many not Google-related sites including things like a small Google map to find them, as such pages then took forever and a day to open. Felt relieved returning and having Google back. Who would've thought?

mittfh

Re: The new man

Warner Music Group once blocked anything on YouTube containing its music (or music published by its publishing arm Warner/Chappell Music) in a dispute over copyright / royalty payments, and even threatened to not license its work to any free streaming site or to any video game as they were getting peanuts.

However, because no credible alternative streaming site exists (at least partially because in order to get up and running they'd need to implement something akin to Content ID to avoid annoying major record labels), they eventually brokered a deal with YouTube.

It wouldn't surprise me if this new Google Music thingy is designed to keep the major record labels sweet and negotiated on their terms and conditions, which favour them and disfavour independent / unsigned artists.

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