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How Artists Are Struggling for Control in an Age of Safe Harbors

on July 08, 2016, 1:00pm

The music industry’s latest effort to fight piracy might very well turn into a 21st century milestone for the Western world. But despite all the headlines, it can still be difficult to put a finger on what this dispute is about. After all, it can be framed in so many different ways. It’s a push for copyright law reform in the United States and Europe by massive coalitions of musicians, managers, labels, and organizations. It’s the latest struggle by artists and creators to control their work, wresting it back from the users and platforms they consider exploitative. And in perhaps its most controversial form, it’s The Music Industry vs. YouTube.

This issue hit the public consciousness in an unprecedented way in late June, largely thanks to artists of varying genres and levels of prominence calling for legislative change. In America, 180 musicians, along with major labels and a variety of music organizations, petitioned Congress to reform the Digital Millennium Copyright Act (DMCA), which was enacted in 1998. Taylor Swift, Paul McCartney, U2, and Lady Gaga signed it and so did ZHU, Gallant, Krewella, and Troye Sivan. A little over a week later, a whopping 1,000 artists signed a letter to the president of the European Commission, asking that the EC clarify “safe harbor” laws that “are misapplied to corporations that distribute and monetise our works,” the letter reads.

This kind of mass mobilization came on the heels of well-publicized comments by frustrated artists (some more so than others), including Nikki Sixx, Blondie’s Debbie Harry, Nelly Furtado, Trent Reznor, and The Black Keys’ Patrick Carney. These musicians have become the public faces of an industry-wide movement that has been snowballing for months, starting with the US Copyright Office’s call for a round of public comments on the DMCA’s “safe harbor” laws for a study announced in December 2015. They collected 92,400 comments in four months, including filings by music industry figures determined to have their say.

Twenty music organizations, including the Recording Industry Association of America (RIAA), American Association of Independent Music (A2IM), and the National Academy of Recording Arts and Sciences, filed a joint comment as the “Music Community.” The three major labels – Universal Music Group, Warner Music Group, and Sony Music Entertainment – made their own filings. Separate comments also came from music managers, recording artists and songwriters, and a group of music creators led by T Bone Burnett. (Some prominent platforms that feature music and media uploaded by users – such as Google and SoundCloud – also filed comments.)

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In the nearly 50-page-long comment, the Music Community laid out their case for reform of the DMCA, which was “supposed to provide balance between service providers and content owners, but instead… provides harmful ‘safe havens’ under which many platforms either pay nothing or pay less than market value for music,” as the comment’s introduction goes.

The “safe harbor” laws of the DMCA effectively immunize service providers from copyright infringement cases if they respond to notices to remove infringing content, among other stipulations. This law intended to help protect “innocent” providers in the good, old days of dial-up when unauthorized online uploading was far more difficult to accomplish and thus less widespread. But now, lightning-fast Internet speeds have turned this notice and takedown system into a dysfunctional process of “whack-a-mole” for copyright holders, the comment argues: Artists and labels successfully get one unauthorized URL or piece of media down, only for more to pop up just hours later. Sometimes these URLs are the same save for the domain name (think “Mp3skull.com” and “Mp3skull.wtf”). And according to the courts that have interpreted the DMCA, a notice must be sent for every single one, even if it is the same album or song. “The current standard of ‘URL by URL’ takedown does not make sense in a world where there is an infinite supply of URLs,” the comment argues.

The rapid proliferation of infringing content online has prompted the music industry to call for “a reform of the DMCA – not a repeal of the DMCA – so when you send a notice, [the infringing content] stays down,” says Jay Rosenthal, one of the two attorneys of Mitchell Silberberg & Knupp LPP that submitted the comment. “Once a copyright owner gives information to a service, it should be ingested into their systems, and used to police the Internet. This needs to be the shift.”

“Artists want at the very least to be able to say ‘no’ about where their music can be placed,” says Portia Sabin, president of the independent label Kill Rock Stars and a board member of A2IM, the independent label trade association on the joint comment and the petition to Congress. “[The DMCA safe harbors] take away your autonomy and take away your ability to control the art you create. If you put it out in the world, it’s gone and you can’t get it back.”

The Internet is vast and an astounding amount of digital music piracy goes on – this is easy to imagine, and to accept. But what does the “whack-a-mole” process of fighting it actually look like in practice? If the case of Taylor Swift’s hit album 1989 is anything to go by, it is a humongous effort. According to Universal Music Group’s eye-opening submission to the US Copyright Office, more than 66,000 DMCA takedown notices were sent to sites hosting 1989 or its tracks in the 18 months between the album’s release in October 2014 and March 2016. YouTube’s filtering system, Content ID, helped secure a further 114,000 blocks. Universal identified more than half a million URLs with infringing copies of 1989 in that period.

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It was the full-time job of a team of Universal staffers to issue takedown notices for infringing copies of 1989 and its tracks found online for four whole months (the comment did not specify just how many staffers were tasked with chasing “Shake It Off”, “Wildest Dreams”, “Blank Space”, and more for a good third of a year). They were assisted by about a dozen employees from the International Federation of the Phonographic Industry (IFPI), but 1989 was still torrented nearly 1.4 million times.

In their submission to the Copyright Office, Warner Music Group estimated that it would take the services of an external contractor and at least 20 to 30 people at the cost of more than $2 million a year to “meaningfully affect (but not entirely block)” just WMG’s top 25 album releases on YouTube. These are resources that major labels are reluctant to spend and means that independent labels simply do not have, as Sabin, president of Kill Rock Stars points out.

“I think people forget about this: Every single major label is also a giant conglomerate that has movie divisions [and more],” she says. “They’re not trying to subsist by selling tiny MP3s. My company – that’s all we sell!” And so, instead of hiring contingents of staff to spend months hunting for illegal uploads, Kill Rock Stars uses Google Alerts. The label home to Marnie Stern, Deerhoof, The Decemberists, and more could send takedown notices “all day, every day, if you wanted to,” but they have to prioritize, says Sabin. Kill Rock Stars tries hardest around album releases, setting alerts to artist names and album titles and sending DMCA takedown notices whenever they catch something, or emailing uploaders directly if they can.

“You can’t just give up and lie down. You have to at least make the effort, because we put a lot of money and time and love into all these releases,” she says. At the same time, “It just feels like a huge waste of your time. You don’t know that you should really be paying somebody to do this because it’s so useless.”

“Resistance is difficult,” agrees Marc Jetton, general manager of Sargent House, the independent label whose artists include Russian Circles, Chelsea Wolfe, and Boris. “When you see it happening and [the music is] already up there and you can find it really easily, it takes a toll on you and the artist mentally.”

Sargent House has had albums leak as early as two months away from release date, which “deflates you,” says Jetton. “Anyone who’s had an album leak in advance and felt that kind of frustration and disappointment would certainly say they’re for reform, because it honestly feels like you’re walking into a hurricane. You start with one site and you start looking at stuff, and within hours it’s everywhere.”

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Sargent House does contract companies which help them send DMCA takedown notices, but “if we [look at] all the releases for our entire catalogue, you can’t constantly fight that,” says Jetton. It’s something he’s reluctant to admit, because “I don’t want people to think we’re not monitoring it,” he says. “But it’s impossible. We don’t have the manpower or infrastructure to do it.”

Under the DMCA, rights holders currently shoulder the burden of sending takedown notices to curb unauthorized uploading, which shouldn’t be the case, some argue, especially for independent record labels who don’t have the resources. “It’s disgusting that I should have to spend any time thinking about it,” says Joe Steinhardt, owner of independent label Don Giovanni, home to Screaming Females, Waxahatchee, Downtown Boys, and more. “Is it a major concern? No, my major concern is with helping artists, getting records out, getting them to people to hear them and helping to foster an alternative culture.”

Steinhardt, for one, has no issue with people sharing music with each other for free. “What I mind,” he clarifies, “is multi-national corporations like Google, via YouTube, making money off it.” Both independent labels, like Steinhardt’s, and majors face the same problem, just on different scales, which has helped unite them around the issue. Artists have also gotten on board thanks to the efforts of music managers, particularly Irving Azoff, who coordinated the June petition and whose companies Azoff MSG Entertainment and Global Music Rights submitted the comments for music managers and recording artists and songwriters to the US Copyright Office in April. (Azoff declined to comment for this article.)

“This isn’t about YouTube,” Azoff tweeted recently. “It’s about safe harbor. The playing field should be even for all digital players.” But as a service dependent on videos uploaded by users that have helped it become a huge online destination for music, YouTube has ended up with “the biggest offender” in this discussion, as Sabin puts it.

This narrowed focus on YouTube is controversial, even within the music industry. Marc Jetton of Sargent House, for instance, supports DMCA reform but is reluctant to stand behind a movement centered solely on YouTube. “I don’t know about targeting specific companies rather than the issue overall,” he says. “It would be the same [for] any torrent [site], or Rapidgator, or any of the lockers where people upload music. Those seem to be as huge an issue as people uploading content onto YouTube.” Indeed, YouTube was not the only service under question in the various submissions to the Copyright Office: Other providers like SoundCloud, 4shared, Tumblr, and Mp3skull were also discussed. But the spotlight has nevertheless come to rest on the video platform. “You cannot sit in a room with a bunch of labels and talk about anything to do with that business [of DMCA reform] for more than 15 minutes before the topic of YouTube comes up,” says A2IM CEO Richard Burgess.

The focus on YouTube also arises from its royalty rates, which are allegedly far lower than other digital music services. YouTube paid record companies approximately $0.72 per user per year in 2013 compared to Spotify’s $20 per user per year in 2014, according to IFPI data, and Universal’s comment to the Copyright Office alleges that YouTube “has almost single-handedly driven the per-play rate down by as much as 90%.” YouTube can justify these rates, the joint comment argues, by taking advantage of the “‘culture of free’ mentality” created by the DMCA safe harbors and pointing to the vast quantity of unlicensed music available for free online – at least YouTube is paying something, the argument goes.

In the past, YouTube has dismissed comparisons between its ad-supported model to services that also use subscriptions, calling them comparisons of “apples to oranges.” It has also repeatedly responded by citing the financial contributions they’ve already made to the music business worldwide. “YouTube is working collaboratively with the music industry to bring more money to artists beyond the $3 billion we’ve already paid out to date,” said a spokesperson for the company in a statement to Consequence of Sound. “The overwhelming majority of labels and publishers have licensing agreements in place with YouTube and choose to leave fan uploads up on the platform and earn money from them 95% of the time.”

YouTube also points to its content filtering and rights management system, Content ID, which allows copyright holders – artists, labels, publishers etc – who apply for it to block, track, or monetize the content it finds. Copyright holders can monetize their own content that was uploaded by users by getting a cut of the ads placed on, before, or around the video (it is not clear exactly what percentage of ad revenue copyright holders receive). “[Content ID] goes above and beyond what the law requires to help rights owners manage their content on YouTube, with fan uploads driving 50% of their revenue [paid out from YouTube] today,” the statement read.

Content ID, which is by many accounts a robust system, “is a great thing, and we all appreciate it very much,” says Sabin. “But at this point, it’s a band-aid on a problem that’s already been out of hand for years.

“[YouTube’s] business model is built on the fact that they don’t have to be held responsible for what others upload,” she says. “The way the system has evolved is always ‘ask after the fact.’ I think all people wish is that they had the choice, that they were asked, ‘Do you want your stuff up there or not?’”

Despite speculation by music industry figures, such as Daniel Glass of Glassnote Records, it is still unclear if YouTube will make any changes to Content ID or their wider business model. But if YouTube were to acquiesce to the music industry and permit or block content upon upload based on artists’ and labels’ say-so, instead of after the upload itself, the YouTube experience might stay largely the same for the average user. After all, as YouTube points out, major music labels do not block more than 95% of user-uploaded content caught by Content ID, but monetize it instead. Artists and labels who disagree, like how Prince used to, might have an easier time keeping their work off the service.

Artists’ and labels’ desire for more control of where their music can go has unquestionably helped them escalate the issue, but figures in the music industry are also realistic about the prospect of legislative change. “It’s going to grind its way through Congress in the usual slow way where not much gets done,” says Burgess, who thinks that the appeal to the European Commission might be more hopeful. Rosenthal is more optimistic, noting that “major artists have influence on Capitol Hill.” But at any rate, developments will take time – Rosenthal estimates that the US Copyright Office’s study of the DMCA’s safe harbors will be out next year, and until then, no one has any way of knowing what they will say.

“It’s difficult to figure out if there’s ever going to be a point in throwing a fit,” says Sabin. “We’ve never gotten a legislative solution to radio. We’ve never gotten radio to budge, and their entire platform is based on free content. It’s really difficult to say, ‘This is a worthwhile effort, and I’m so glad we’re doing it.’”

But taking corporations to task in the public eye seems to be the only way things might change, she says. And “if artists push for it, it’s worth pushing for. Because nobody cares what labels think.”

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