YouTube vs. Indie Labels Fight: Tech Behemoth Bullies Best and Brightest
2014
Disclaimer: My views don't necessarily reflect those of my employer and are entirely my own.
By AW Driscoll
YouTube stirred up great controversy three weeks ago when its head of content and operations Robert Kyncl announced that the company would remove videos uploaded by indie record labels over a negotiation dispute. YouTube, which is owned by Google, sent out termination notices to indie labels that refused to sign licensing agreements for its new subscription music streaming service which is expected to compete with Spotify and Beats. The deals, as leaked documents revealed were highly unfavorable to the indie labels compared to those negotiated with the major labels. As of Friday, July 4, YouTube has announced it is “allowing more time to negotiate a solution with labels," although its threat to block indie labels remains on the table if they can't come to an agreement.
Reports have suggested that YouTube’s censorship threat entails blocking videos by the targeted indie labels on both its video streaming service and the new streaming service. Even more damaging for content creators is the possibility that YouTube would prevent indie labels from utilizing the site's Content ID system, which is how copyright holders monetize and address copyright infringement on the site's large quantity of user uploads. Affected indie label artists would include the likes of Franz Ferdinand (Domino Records) St. Vincent (4AD), Radiohead (XL), The Prodigy (Cooking Vinyl) to name just a few of my favorites.
YouTube's censorship threat strikes a raw nerve because it starkly contrasts with the company's permissive policy towards unauthorized content rationalized by its "open internet" philosophy. In other words, how does the company justify removing content by indie artists when it leaves so much up that ought to be removed? Since the tech company's days as a start-up, YouTube has derived much of its traffic from hosting vast sums of copyrighted songs, television clips, and movie clips posted without the owners' permission. In addition, a dark swath of YouTube uploads sells illicit material like stolen credit card information and promotes unseemly organizations and businesses from Jihad to sex tourism. The proliferation of dubious content on the site makes the company's threat to mete out punitive censorship against cultural treasures like Annie Clark and Thom Yorke seem hypocritical, exposing Google's open internet philosophy as only sincere when it suits the tech giant's needs.
An editorial in Digital Music News on July 17 by Ari Herstand argued that the media reports covering YouTube's threats against indie labels are overblown and misleading because YouTube wouldn't necessarily block user uploads of indie label artists' songs. However, allowing users to distribute artists' work but not the artists themselves defies any basic standard of fairness as well as the copyright holders' exclusive right over the distribution of their work under law. Worse, blocking labels' Content ID accounts would reduce the recourse artists have to address infringement, causing piracy to increase. An intended consequence of YouTube's hardball tactics, the increase of unauthorized user uploads function as coercive leverage against the labels.
Launched in the wake of Viacom's litigation against Google in 2007 over piracy claims, Content ID is the system through which copyright holders assert control over user uploads. An audio fingerprinting technology-cum-licensing portal, it can detect audio of copyrighted songs and notify copyright holders of possibly infringing user uploads. Once alerted, the copyright holder can basically choose to a) license her work to YouTube for a cut of the ad revenue served on the video (also termed, 'monetization') or b) request the video's removal. Because Content ID tethers monetization and infringement monitoring together, blocking an artists' account isn't just cutting them out of a revenue stream but hamstringing copyrights holders' capacity to root out piracy - which is a burden that YouTube, not content creators, ought to legally bear in the first place.
Here is a hypothetical example involving 4AD - one of the indie labels YouTube is threatening - that illustrates some of the practical consequences indie labels could experience as a result of censorship and Content ID blocking. Let's say YouTube user, Starsaligned159 uploaded a lyric video for "Marrow" by 4AD artist, St. Vincent. While Starsaligned159's "Marrow" video would not be blocked by YouTube, 4AD and consequently St. Vincent couldn’t make any money from the video even though they may have wanted to monetize the video with ads.
And what if instead of Starsaligned159, DavidDukeSuperFan decided to upload "Marrow," setting it to a montage of burning crosses? Without notification through Content ID, 4AD might have no idea the video even exists, and yet it could remain on the site, spreading a message that is deeply objectionable to the artist. As a small label with limited manpower to scour the site and play whack-a-mole filing take-down notices, 4AD would be kept in the dark without Content ID, resulting in the increase of infringing and/or objectionable videos using "Marrow."
Finally, because YouTube would block 4AD's own uploads, the company would censor the label's official video for "Marrow" from the site. Presently (in the non-hypothetical real world) the official video draws traffic to 4AD's online store and sets the music to images of the artist's liking and unique expression.
While it could be cool to watch Starsaligned159's upload of "Marrow,” it's decidedly uncool that such an arrangement would mean St. Vincent and her label get exploited and their content stolen – without compensation and without permission. These would be the intentional consequences of YouTube's punitive actions, and it jeopardizes the possibility of good faith negotiations when one side wields property theft as leverage.
All roads eventually lead back to the law that enables YouTube to host copyrighted material without permission in the first place: the Digital Millennium Copyright Act's safe harbor provision. Enacted in 2000, the provision offers website owners protection from copyright infringement liability as long as they lack knowledge of infringement - either "actual knowledge" or "red flag knowledge" - the latter of which is defined as the facts and circumstances that would be obvious to a reasonable website owner. A perusal of the site's aforementioned treasure trove of unauthorized content shows how YouTube's claims of ignorance in regards to either category of knowledge stretch credulity. But selectively blocking copyright holders from participating in its infringement flagging software arguably achieves a new level of brazenness.
The current YouTube vs. indie label fight demonstrates that even if YouTube follows the letter of the DMCA, it doesn’t follow its spirit. If there's any justice for content creators, YouTube's aggressive and coercive strategies ought to draw greater scrutiny upon their protection from infringement liability under the safe harbor provision. Either way, YouTube's petty, unbecoming threats against some of the most creative musicians working today have all but ensured the tech behemoth's failure in the court of public opinion.