An Alternate History for Music, YouTube, & Everything Else

Photo by pkorbel

Photo by pkorbel

Take all the best qualities of the web and imagine for a moment that the boundaries of intellectual property ownership are respected and upheld–at least on the major, legal platforms.  Imagine, for instance, that YouTube still exists, but that one would not have typically used the platform to stream an unlicensed recording of a popular song by a popular artist.  Instead, in this alternate history, the artists’ individual websites developed as the only places where users could stream tracks, read lyrics, and even share tracks via social media.  Meanwhile, YouTube could still have evolved as a platform for original expression, including parodies and covers of popular songs, most of which would likely be left alone by the rights holders, just as they are now.

Of course, it’s hard to imagine YouTube having grown without its infringe-first/settle-later strategy, conveniently protected by flaws in the DMCA; but as long as I’m projecting a hypothetical, I ask readers to imagine what we might have gained or lost if the market had developed just a little differently in this regard.  YouTube was able to use the leverage of mass infringement in order to grow market share and turn the platform into a default destination for streaming music, but that’s not the only way this history had to unfold. If YouTube had never been able to—or had chosen not to—host millions of unlicensed, user-uploaded songs; and if the default user habit had instead been to first visit the artist website to do all the things they now use YouTube for, what would be lost for the fan?  I would argue nothing.  On the other hand, what would probably be gained is a more interesting, more diverse, and more entrepreneurial digital market for music makers and listeners alike.

Right now, if you visit a major star’s website, you probably won’t find full tracks to stream or share via Facebook, etc.  But if the artist site had an exclusive, if the millions of user-uploaded streams on YouTube alone were no longer part of the equation, I bet most artists would probably have begun to recognize the incentives to make streams available on their own sites.  Google could still sell advertising in this paradigm, except that the artists themselves (gasp) would have a stronger voice in negotiating terms because they would not be held hostage by the rock-and-hard-place deal in the YouTube model.

Even if we look at a fairly small band, like The Felice Brothers, who are popular local artists in the Hudson Valley where I live, this model could theoretically apply.  Their top ten tracks on YouTube have generated about 1.3 million total plays.  That’s not Taylor Swift or Adele territory, but if that traffic were driven exclusively to the band’s website, would it be worth it to the artists to provide streams, lyrics, and sharing embeds for social media?  Certainly it seems that capturing that traffic could not be worth less than the ancillary (or shared) value the band gets via the YouTube platform; and it could easily be worth considerably more simply because the fan would likely have a more in-depth engagement via the official website.

At the same time, Google could do its thing, like recommend other artists based on your liking The Felice Brothers, and it can even monetize that piece of the transaction without actually having to “own” the experience that rightly belongs to the artists.  That would be less attractive to Google and its shareholders, I’m sure, but we’re talking user/creator experience here, not revenues for one huge company.

As I say, I believe user experience overall could be much richer than it is.  Imagine a teenager wants to hear a new song a friend played for her, but she doesn’t remember who the artist is or even the correct title of the song.  This is, of course, where Google makes her young life better than ours was; its page rank algorithm helps her (even though she only knows a few terms) find the artist’s website in a matter of seconds. Here, she is not only able to listen to the song she had in mind, but she’s also more inclined to learn something about the artist(s), more likely to explore other tracks, share music she finds on social media, read lyrics etc., and begin to discover how big a fan/consumer she will become.  Just finding a copy of a song that some other fan uploaded to YouTube doesn’t really offer much of a relationship at all for the prospective new fan.

The point is that, technically, all of the best features for both artists and fans could still exist in an online market in which YouTube is exclusively the platform it claims to be—a place for original expression—rather than the platform it is—a place for original expression and massive infringement of popular creative works.  And I think this is more or less how many of us in the 1990s imagined the web might evolve—as a more diverse market for entrepreneurism rather than a consolidated market with a few dominant platforms that figured out how to commandeer the relationship between a fan and creator, and then sell that relationship back to both parties by converting the transaction into ad sales.

Of course, after acquiring all the traffic that may otherwise have gone to the artists’ individual sites, YouTube was then able to position itself as indispensable and, therefore, free to dictate–and change–terms at will.  Even the revenue-sharing program through Content ID was only introduced after YouTube had cornered substantial market share by means of user-generated infringement shielded by the DMCA.  And based on comments from both entertainment attorneys and independent musical artists I know, Content ID may best be described as a mercurial and inscrutable arrangement for smaller creators and/or a tool used to leverage the platform’s ill-gotten market share to make a take-it-or-leave it “deal” with the majors.  Yet, for all the ways the YouTube platform siphoned off financial value and weakened bargaining power for may types of music creators, it’s not at all clear that we fans really needed the platform in order to enjoy exactly the same experiences we could have in a more diverse market distributed across multiple sites.

There may be no going back, of course; but in the larger dialogue about issues like YouTube’s extraordinary leverage with creative artists and the extent to which the DMCA provides cover for the predatory, winner-take-all nature of these platforms, I think it’s important to remember that the way things are is not necessarily the way they had to be–or have to remain. This is, in fact, one of the underlying themes running through every criticism I’ve read by Jaron Lanier, formerly one of the leading architects of these systems, but who now consistently argues that the web we have is engineered backwards—so that humans serve the computers rather the the other way around. And rather than think of the the design of Web 2.0 as having been inevitable—as technologically deterministic—that it in fact functions exactly as humans coded it to function.  As such, it is not entirely impossible or unreasonable to imagine how it might be better.

© 2016, David Newhoff. All rights reserved.

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  • There’s no sane reason for artists to be selling files or streaming from anywhere but their own site and receiving all of the proceeds!

    • Sam Flintlock

      Well, there’s the obvious benefit of increased prominence and people stumbling across your band when browsing generally.

      YouTube doesn’t have much to offer there though, apart from it’s large slice of the market share. Bandcamp is superior in every way.

      • iTunes also offers little or nothing in the way of exposure. Check out It should be the model for every artist.

      • David Newhoff

        To be honest, Sam, I think the “discovery” case is a bit overstated. We discovered music before the internet and I think continue to discover it through traditional means like word of mouth, etc. More to the point, though there’s no reason why an alternate situation as I describe cannot also feature discovery in the same way. I mean, imagine being a fan of today’s David Bowie and though his website, you’re introduced to Lou Reed or Marc Bolan. To me, that experience would be way cooler.

  • And then fairies farted clouds of sugar dust and the whole danced to music in which nary an autotune was heard. What a bunch of fanciful tripe this is.

    • David Newhoff

      We are the music makers, And we are the dreamers of dreams, …

      Thanks, Veruca.

      • Fenster is right. There’s no way for a computer to know whether a particular piece of music is being used legally or not. Indeed, it’s often difficult for people to know.

        There’s an excellent essay on this subject called ‘What Colour Are Your Bits?,’ which you can read here:

        I highly suggest that you do, because your what-if scenario displays a very fundamental ignorance of how computers work and what limitations exist on how they might ever be made to work. It could never have been as you imagine it, and if anything, it’s only ever going to get worse from your perspective. There’s no going back and there’s no stopping still.

      • From the essay recommended by Anonymous:

        Computer scientists who want to try to be helpful may say, “Okay, you, the lawyer, are a dangerous idiot, but I have to work with you or be thrown in jail as a Commie Mutant Traitor as happened to Dmitry Sklyarov, so I’ll try to address your concerns. You say there is some special property of some bits and we need to know which bits have this property.

        This is a nice example of the deliberate obtuseness so often displayed in these sort of discussions. It’s like arguing that private property can’t exist because atoms don’t have an attribute called “ownership”. Lawyers and law-makers are quite happy to acknowledge that atoms don’t have such an attribute and, as far as I know, no lawyer or law-maker has ever claimed that they do. Yet, somehow, we’ve managed to have various systems of private property which have lasted for thousands of years.

        How do computer scientists account for that?

        Legal theorists account for it by pointing out that ownership is not a property of matter, whether atoms or bits, but rather it is a relationship. And it’s not a relationship between the owner and the thing owned, but between the owner and the other members of the community about the thing. Relationships exist between people. If you own a block of land, you have the right to occupy and I (along with everyone else) have a duty to not trespass. If I ignore that duty and enter your land, you have the right to take action (such as call the police) to have me evicted. You also have the power to free me of that duty by inviting me onto the land and to revoke that temporary privilege by asking me to leave. It’s all relationships between people.

        Why computer scientists have so much difficulty grasping this, I don’t know. Computer scientists of the libertarian persuasion (and there are many, many of those) are quite keen on the idea of private property when it applies to physical objects, yet refuse to understand that the same sort of relationship can be extended to other things.

        Maybe it’s tunnel vision. Computer scientists have a hammer, so they just tend to see everything as a nail. Or, since most of them seem to be smart enough to avoid that, it’s just deliberate obtuseness.

      • David Newhoff

        Anonymous —

        Adding to what Zoran says, I don’t believe anything I’ve proposed in this hypothetical scenario requires that computers work in some new and impossible way. To the contrary, it assumes that the technical functions of the web are exactly the same as they are right now but that humans behave differently. I narrowed the focus to YouTube and music to keep it simple; and with that example, the DMCA could have been written differently, and the content on YouTube would be different without its functionality changing in the slightest. So, by raising the issue of whether or not a computer can determine the legality of a use, you’re creating a straw man.

      • You need look no further than Shazam to see that a computer absolutely can identify ownership provided the owner supplies a file to their database. In fact it can identify music ownership in seconds from just the sound picked up using the microphone in a cell phone!

      • Computer scientists are some of the most obtuse people on the planet. Makes sense though, they deal with 1’s and 0’s all day … on or off, black or white, etc, …while in actuality everything exists in a ‘shade of grey’.
        The human condition tells us that people will exploit other people as hard and as long as it is convenient to do so. We as creators must make the status quo a living fuching hell for them to do so… they’ll mosey on to easier pastures soon enough.

      • REAL computer scientists are fine people. The problem is the Sand Hill Road/Wall Street hucksters who sell investors Ponzi schemes based on mythology such as technology changing copyright and people having a right to loot the intellectual property of others, aka The Illusion of More.

      • Well, looks like you’re all responding to the essay in exactly the way that it predicted you would:

        “Someone who cares a lot about what Colour the bits are, and spends a lot of resources on trying to answer that question, is a dangerous idiot if not a Commie Mutant Traitor. In intellectual property law the Colour of bits exists and is of absolutely paramount importance. A computer scientist who won’t tell what Colour the bits are is being deliberately unhelpful, and a computer scientist who denies the very existence of Colour (as any conscientious computer scientist must eventually do) is a dangerous idiot and/or a Commie Mutant Traitor.”

        Zoran comes the closest to making a salient point, but manages to frame it in such a way that I think he fails. Essentially the main thing is that whether or not David wishes it were so (“If YouTube had never been able to … host millions of unlicensed, user-uploaded songs”), a computer can’t know that a particular batch of data was uploaded by a random user, is unlicensed, or that it’s even a song. (Steganographically encoding a work within some innocuous other thing is pretty trivial and I have personally seen it used as a technique for piracy)

        Only people can perceive such things (no, Bob, Shazam is not Santa Claus), and so the only way that David’s silly dream of YouTube without the possibility of infringement would work would be if every single thing posted was vetted by copyright attorneys. While as a copyright attorney, I can’t really say I’m against the possibility of so much more work in the field, I know it wouldn’t work at scale. It would be like stopping telemarketing and phone fraud by requiring that a human operator listen in on every call to decide whether or not it should be summarily disconnected. It would work, but it would require that a large fraction of the population work as operators. That’s certainly how it works for real and personal property, Zoran, where there are figurative armies of people — including literal armies — backing up the system because, no, property can’t be made to police itself such that it cannot be taken. And even then, it still wouldn’t work that well. Some allowable things would be prohibited, and some prohibited things would be allowed, and generally mistakes would be made, because hey — we’re only human.

        That, or the whole thing would have to massively restrict what it accepted — essentially being no different than existing tv or film distribution, as our Luddite host would likely prefer. Or it would have to not exist, which David would also likely prefer.

        Me, I’d rather accept the comparatively minor harm incurred by rights holders to enable the massive benefit of people being able to conveniently share video with one another. (And to dissuade anyone from quoting numbers about lost jobs in Hollywood, or whatever at me, I would consider the total destruction of the professional film and tv industry to be a minor loss, not that there’s even a small chance that it would happen).

        Plus, it’s just logistically more sensible to put the burden of policing use on the rights holders who 1) are in the best position to know what uses are and aren’t licensed; 2) give a shit, because seriously, no one else does or can actually be made to. That’s how we do it for property (the police don’t normally bust in to your house to check that nothing’s missing; you, the owner, have to notice first and call for them).

      • David Newhoff

        Well, Anonymous, you’ve proven yourself to be misinformed about the issues and even about YouTube’s capabilities. But above all, as is typical of those with your point of view, you’ve proven to be incapable of imagining any model other than the one that evolved. This implies that you don’t even know the basic history of Google or the early pioneers of Silicon Valley, who did not set out to build giant advertising platforms. But rather than acknowledge that, you’re sweeping the entire conversation under the rug of technological determinism because “this is how computers work.” It’s a lame, boring, and imagination-free way to look at anything.

      • I said in an earlier post that seems to have got lost in the ether that the essay was mostly strawman arguments, basically making the falacious point that because 100% of all infringement cannot be detected that 90% detection is worthless.

        If I inform YT that song X is unlicensed for use on YT then that should be sufficient. I’m not going to change my mind tomorrow or next week and if I do I can tell them. If blocking means that someone needs to make a fair-use claim then they can do so, and I’ll consider it. There is no real hardship involved.

        If I inform Google that image Y is not licensed on any of their sites, them similar criteria apply.

        If I inform Google that video Z is not licensed on any of their sites then the same applies.

        Its not a hard concept to grasp.

      • anonymous says: ” Plus, it’s just logistically more sensible to put the burden of policing use on the rights holders who 1) are in the best position to know what uses are and aren’t licensed; 2) give a shit, because seriously, no one else does or can actually be made to. That’s how we do it for property (the police don’t normally bust in to your house to check that nothing’s missing; you, the owner, have to notice first and call for them).”

        For crying out loud PLEASE give the authority…
        you all keep saying you don’t want tech companies to police their own platforms… then give us the power. Oh, wait… you don’t want that either… SILLYCON valley makes way too much money on the status quo to let the actual law work.

      • Anonymous wrote:

        Only people can perceive such things

        Well, I believe that follows logically from “Relationships exist between people”. So, as far as I can tell, we’re in agreement: bits can no more be made to police themselves than atoms can. You need people to do that. All the talk about what computers can and cannot do is just a distraction from that.

        It’s a version of what’s known as a motte-and-bailey fallacy, a type of bait-and-switch. A motte is a fortification on top of hill surrounded by a bailey, which is the economically productive land surrounding the hill. The motte is defensible, while the bailey is not. When attacked, defenders would withdraw into the motte and rain arrows and boiling oil down onto the attackers occupying the bailey. This prevented the attackers from gaining any economic advantage from the bailey unless they could also take the motte. Since the motte was fortified, generally the attackers couldn’t take it and so eventually just gave up and went away. Then the defenders would emerge from the motte, re-occupy the bailey and get on with enjoying its economic productivity.

        In the fallacy, the motte is an easily defended position — such as computers can’t tell who owns a particular collection of bits — and the bailey is a broader claim which isn’t really defendable at all — such as tech companies should be allowed to exploit any creative work they want without any form of agreement with or payment to the creators of that work. The fallacy is employed by those enjoying the benefits of a particular bailey when they encounter any criticism, at which they retreat into the motte and endeavor to focus the argument on that much more defensible position.

        So, when someone points out that companies such as YouTube are built on massive copyright violations and misappropriation of income that would otherwise go to the holders of those copyrights, we end up with a mass of techno-speak about the capabilities of computers.

        This is a fallacy because the second position — the bailey — doesn’t follow from the first — the motte. However, arguing about the capabilities of computers eventually tires out the critics and allows companies like YouTube to get back to violating copyrights in relative peace.

        So, telling me that it would take literal armies of people to police the bits used by companies like YouTube just tells us that, if they can’t afford those armies of people, those companies don’t have a viable business model. It doesn’t follow that members of the creative community should subsidize those companies by giving them free stuff, any more than farmers should give free food to restaurants who can’t (or don’t want to) pay for the produce.

        Tech companies aren’t run by computers, they’re run by people and those people are perfectly capable of telling what colour something is (to use the metaphor from the essay), they just choose not to. Computers are tools. The pens and typewriters used by those dealing in physical property couldn’t tell who owned what either, but no-one thought that justified wholesale theft of physical property.

      • Exactly! A current excuse being advanced from spotify supporters, as to why spotify can’t pay songwriters is that they don’t know who those are:

        the argument itself is fallacious for various reasons, but even if it wasn’t the fact would remain that spotify and others choose to exploit the work knowing full well that they don’t know who to pay. IOW if true then it is a known-unknown, and if they know they don’t know then they shouldn’t use.

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