Category: Art

Class Action © Suit Against YouTube is a BIG Friggin’ Deal

When Viacom et al, in 2014, settled their copyright infringement suit against YouTube, that outcome had significant consequences for millions of independent creators. For one thing, the settlement left YouTube and other major platforms to over-emphasize the district court’s summary judgment that the DMCA had fully shielded the video platform against any liability in that case—this despite the appellate court having found that holding to be premature because there remained triable issues of both law and fact. Thanks to the settlement, however, those questions were never adjudicated. (See post here noting Viacom is unfinished business.) But now, some of those same questions of law, and very similar questions of fact, have been reprised in a class action suit, filed against YouTube on July 2nd, by Grammy winning composer Maria Schneider. And this case is going to be a doozy.

For one thing, the class of creators represented by Schneider has little motive to settle before the courts thoroughly weigh every aspect of the complaint. Further, the plaintiffs have about a decade’s worth of evidence, and experience with the DMCA, that Viacom et al did not have when they filed against YouTube in 2009. Further, the Schneider complaint reminds us that YouTube was built on mass copyright infringement that it still thrives on mass copyright infringement.

In this case, as in Viacom, plaintiffs cite evidence that YouTube’s founders clearly recognized that their platform was as existentially dependent on hosting infringing material as any pirate site on the web. “[A YouTube] founder argued against the company removing obviously infringing videos, claiming that site traffic would drop by 80% if it did so,” the Schneider complaint avers. At that time, the Google Video platform, which did monitor and remove infringing material, could not compete with what Google then called the “rogue” YouTube.

So, naturally, when Google purchased the “rogue” YouTube in 2006 for $1.65 billion, “[They] chose to continue YouTube’s aggressive policy of allowing obviously infringing videos to be uploaded with zero ‘friction’ and no screening, thus allowing infringing and illegally posted videos to be played and monetized by YouTube unless and until a takedown notice was received from the copyright owner,” the complaint continues.

Then, under pressure from the major, corporate rights holders, YouTube created Content ID, the platform’s automated system, which identifies protected material, alerts rights holders when their works are uploaded, and gives them options as to what to do with those uploaded files. But this system is not available to the vast number of independent creators like Maria Schneider. The complaint states, “Only approximately five percent or less of all applicants who attempt to sign up for Content ID are approved for its use.”

Keep in mind that when I say “independent” creators, I am not referring to some singer/songwriter you haven’t heard of and has a hundred views on the platform. “Independent” comprises, for instance, thousands of musical artists with substantial fan bases and multiple albums (songs you hear on the radio), but whose rights are not managed by some large label or publisher YouTube wants to try to placate. This is not to suggest that the larger rights holders are satisfied by the state of enforcement. To the contrary, they’ve made it quite clear that the volume of infringement, even with Content ID, is unacceptable. I merely mean to emphasize that the class referred to here as “independent” is very valuable when monetized.

Left out of the Content ID program, countless independent rights holders have been trying for years to fend for themselves—manually sending one notice per infringement via the DMCA notice-and-takedown provision. And what enables YouTube to exploit this class of creators is the presumption of immunity under the “safe harbor” provisions of the DMCA. See post here for more detail, but the basic premise was that, as long as a platform meets certain conditions, taking certain actions to remove infringing material, it cannot be held liable for infringing uploads by its users.  

But now, the Schneider complaint makes a compelling argument that YouTube had voided its safe harbor immunity vis-à-vis the plaintiff class in this litigation. Among other interesting aspects of this case, it is the first time, in a long time, that anyone will ask the court to articulate the law on some critical DMCA matters that have otherwise been left to the anecdotal and editorial buzz of the blogosphere.

As just one example (and a bit of unfinished business in Viacom), anyone who follows these issues will be eager, or perhaps anxious, to know whether the court ultimately agrees with Schneider that YouTube has both “actual” and “constructive” knowledge that it hosts infringing material. What constitutes “knowing” when material is infringing is a hotly contested topic, and one that will be of particular interest to the Senate Judiciary Committee in its ongoing review of the DMCA’s efficacy since its passage in 1998.

There will be plenty more to write about this case, perhaps digging into some of the legal nitty-gritty. YouTube’s response will almost certainly be a motion to dismiss, arguing that the platform is unequivocally shielded by the DMCA safe harbor. Consequently, the district court will have to weigh the full scope of Schneider’s multiple arguments that the platform has vitiated that liability shield, and whether any of those allegations implicate triable issues of law and fact. And, as mentioned above, that’s exactly what the Second Circuit Court of Appeals decided in 2014. So, this should be quite a show.

Coronavirus Exposes Big Tech’s Big Bad Ideas for Artists

Emergencies have a way of shining a bright light on flawed thinking and dumb ideas. The COVID-19 pandemic has exposed latent and embarrassing American weaknesses, from the highest levels of government right down to the grocery stores, where Karen and Ken refuse to follow basic public safety rules. All in, it’s been a rather stunning demonstration of national incompetence laid bare for the world to watch, shake its collective head, and put up border signs saying: NO AMERICANS PLEASE. Happy 4th of July.

In the creative world, the pandemic has illuminated one of the first lies Big Tech started pitching more than twenty years ago—namely that wiping out the market for music sales was an opportunity that musical artists were failing to understand.  Tell that to one of the industry’s latest casualties—singer/songwriter Nadine Shah, creator of four albums to date, who, according to an article published on June 25, was forced to move back in with her parents after all her scheduled gigs were canceled due to coronavirus.  Nick Levine writes …

“Shah admits she feels ‘humiliated’ by what has happened and initially ‘didn’t want my peers to know I’m skint’. But then she had a change of heart. “’It’s so important for musicians like me to talk about this, because my bread and butter comes from playing live. Once that’s gone, I’ve really got nothing,’ she says. ‘That’s
why we have to encourage people to buy records and make the streaming system fairer. What artists are paid by streaming services for their music, it’s disgusting.’”

By now, it has been widely reported (or easily assumed) that everyone who works in the venue-based creative arts is suffering financially due to the pandemic. With theaters of every size shuttered, musicians cannot perform, plays and musicals are on indefinite hiatus, and all the associated economic activity—from backstage crew to nearby restaurants and bars—has come to a deafening halt. On June 29, it was announced that Cirque du Soleil will be filing for bankruptcy.

For the most part (notwithstanding America’s general mismanagement), there is no one to blame for these effects of COVID-19. At the same time, many of us who have, so far, mostly been inconvenienced by the pandemic, rather than unemployed by it, are spending more time than ever streaming music, movies, TV, etc. And not surprisingly, that increase includes outright piracy. In a letter to the Senate Judiciary Committee commenting on DMCA review, CreativeFuture cites analytics firm MUSO finds an increase of 31 percent in U.S. visits to pirate sties between February and March, as stay-at-home orders went into effect.

But one class of creators, who should at least be sustained by legal streaming, instead watch their “spin” numbers rise on platforms like Spotify, while pennies trickle into their bank accounts. Songwriters and recording artists were, of course, the first casualties in Big Tech’s assault on copyrights. In the late 1990s, when P2P file sharing (i.e. Napster) nurtured a whole generation’s worth of opposition to the idea of paying for recorded music, individual creators not only watched helplessly as their works were pirated in the tens of millions, but they were also forced to endure a litany of absurd rationales and explanations that amounted to victim blaming. “Quit whining about music sales,” the imperative resounded. “Sales will never return. Adapt! Develop new business models. Sell merchandise. And, above all, get off your lazy butts and tour.” 

These and other helpful tips naturally came from people who neither participated in, nor knew anything about, being a professional songwriter or musical performer. As countless members of the music community tried repeatedly to explain, those other revenue streams are all fine, but they are not even close to a substitute for sales of sound recordings.

As for touring, anyone speaking so blithely about it, fails to understand how costly, labor-intensive, and unglamorous that job really is for any artist(s) smaller than mega-stars. And, of course, music creators who are exclusively songwriters and composers do not tour at all. Nevertheless, the rhetoric became so shrill over the years, that some consumers seemed to convince themselves that paying for recorded music was tantamount to subsidizing artists who were too lazy to work for a living. Not that I want to give that cynical and ignorant opinion any deference, but what happens now?

Now that piracy and the predation of “legal” platforms have devastated music sales—and there is no foreseeable date when live performance will return—to what new model should the music creators “adapt” next? Sadly, Nadine Shah has answered that one for herself—the move-back-in-with-her-parents-and-still-try-to-make-music model. And, let’s not regurgitate the “nobody promised you a career” meme. No artist is that naïve. If the market does not want a creator’s work, that’s fair. It’s a risk every artist takes. But if the market wants the work (and it appears that a sizeable market wants Shah’s music), but multi-billion-dollar corporations have managed to redirect the creator’s earned income into their pockets, that’s not creative destruction, it’s theft.

Old (dumb) Ideas Still Wreaking Havoc

In 2009, Mike Masnick appeared in a video in which he techsplained the “The Economics of Abundance,” an idea so facially preposterous, it makes trickle-down look like a sensible theory. Without a hint of irony or self-consciousness, Masnick parroted the concept that the natural price for recorded music is zero (because digital distribution obliterates scarcity). But this is good news because, as he said at the time, “…additional scarcities are created. For example, the more abundant music is, the more demand there may be for live shows or merchandise….”

Anyone with far less education than Masnick can easily figure out that just because the market has access to unlicensed (free) recorded music, this does not create a new demand for live shows or merchandise. There is no question that the destruction of sales aggressively forced musicians to rely more on those other revenue streams, but calling that an opportunity is as economically bogus as it is personally offensive. Just ask the 50+ year-old singer/songwriter with the family and a few incipient health issues how eager she is to get back on the road, while her fans are happily listening to her sound recordings, but only making money for Spotify et al.

Further, to demonstrate the big “idea,” in that video, Masnick casually circled two icons on a white board, each representing live shows and merch, as if it were just that easy. As if those revenue generators do not have their own costs and barriers, which were in no way lowered by the “abundance” of zero-price sound recordings. And let’s not forget that the internet also opened up new opportunities for swindlers to sell counterfeit merchandise, thus providing indie musicians with the opportunity to chase infringements of their musical works and their tee shirts at the same time. Because that’s how more music gets made. 

Why bother highlighting the gibberish in an 11-year-old video? Because it so neatly sums up the thinking that has persisted from the late 1990s into the age of Spotify and beyond, and which still results in an artist unable to pay her bills, despite the popularity of her music. No, it is not Big Tech’s fault that a global health crisis canceled Nadine Shah’s gigs and countless live events for so many creators. But in light of the fact that most of us enjoy music most of the time as sound recordings, there is no valid economic theory to explain why songwriters and musical artists should be providing all that abundance for the artificially manufactured price of zero.

What the Age of the “Hack” Teaches Us About Copyright Terms

(Originally published at Copyright Alliance as part its “Secret History of Copyright” series of blogs.)

“Students of the nineteenth-century drama come sooner or later to the realization that the most important dramatist of the period was Shakespeare.”  – Marvin Felheim, The Theater of Augustin Daly (1956) –

Most people are probably familiar with the word hack as a pejorative for a bad writer, or as a neutral colloquialism for a cab driver, but few may be aware that both connotations derive from the same source. Hackney, according to Merriam-Webster, is a 13th century term for a horse “suitable only for ordinary riding or driving.” Consequently horse-drawn hansom cabs were manned by hackney drivers, and the word hack for cabbie persisted beyond the invention of the automobile.

Meanwhile a hack writer was largely (if not exclusively) a phenomenon of the burgeoning American theater industry, especially in postwar New York. The Civil War transformed the city into an industrial powerhouse, and this spawned a new and growing middle-class, which meant that more Americans were suddenly at their leisure to attend theater performances. But finding a supply of new dramatic material was another matter. “There are no American works on American stages,” complained one critic of the period.

Due principally to the absence of international copyright agreements—a condition that lasted roughly sixty years from first debates on the matter to first adoption in 1891—a large volume of American theater production was based upon hastily adapted or translated literary and dramatic works from Europe. And the writers paid to do all that frenzied scribbling were called hacks.

What the copyright watcher may find interesting, though, is that this era for the American theater—a market largely predicated on a copyright free-for-all—resembled a world that contemporary public domain advocates seem to project as ideal for creativity. It was not. Least of all by contemporary standards.  

Most advocates for the primacy of the public domain espouse a general hypothesis that the duration of copyright protection fails to “promote progress” by draining the common well from which all authors must drink. This assertion endures, despite considerable evidence that contemporary authors (pandemics notwithstanding) have been producing new works much faster and more abundantly than the market can consume them.

Taking a very literal view of the author’s need to “build upon” precedent works, critics of copyright terms allege, almost as a moral imperative, that works must fall into the public domain more rapidly than they do. And this thesis is usually supported by hypothetical predictions that may best be described as the Who knows what might be done? school of copyright theory. But rather than gaze bewilderingly through a fog of possible futures, we can instead focus lucidly on the microcosm of mid-late nineteenth American theater, when the market conditions looked very much like the public domain paradigm that contemporary term critics believe should be restored.

Early Broadway was certainly an exciting market, if not a literarily sophisticated one. Centered around 14th Street in Manhattan, theater managers were constantly swapping out their playbills in a time when a month was long run for a show.  Audiences were more often drawn to see their favorite stars, or by on-stage spectacles like city fires and storm-tossed ships, than they were by playwriting itself.

It would not be accurate to say that all writers of the period lacked talent, or that some fine, original works did not emerge between the cracks. But even one of the best dramatists of the era, Dion Boucicault, complained that he could be paid more for a hack adaptation of an unlicensed “safe bet” than he could for a new and original play. This phenomenon mirrored the stifling effect that the lack of international copyright agreements had on early American publishing inasmuch as the theater industry likewise feasted, for a while, on a steady diet of transatlantic poaching rather than invest in new material.

The absence of international copyright agreements, between roughly 1865 and 1881, was undistinguishable from having a very large volume of works in the public domain—a condition that many of today’s copyright critics advocate rather strenuously. Yet for all the market activity theater managers derived from all that rampant appropriation, many of the dramatic works themselves were, in every sense, hackneyed retreads of works in the commons. Not surprisingly, hack work produced a lot of disposable plays, while the market forces of the time stymied development of more inventive playwriting.

Appropriation in nineteenth century theater was so constant that many authors (e.g. Dickens) found various workarounds to earn at least some revenue from play adaptations that they could not prevent or control. Meanwhile many dramatists were themselves such incorrigible pirates, that there were limits as to how much they could accuse one another of infringement. Not that litigation did not occur among playwrights—some landmark cases happened during this period—but the point is that nearly all dramatists of that era were very liberally drinking from a common well, just as contemporary public domain advocates would have them do.

But by the turn of the century, contemporaneous with the adoption of international copyright agreements, dramatic works authors turned their attention inward, rather than outward, for source material. Henrik Ibsen, usually credited as the father of modern drama, revealed how theater can explore the labyrinths of human psychology, that a play can be about the subtle dynamics of a family within the four walls of an ordinary home. Naturalism changed everything, including audience expectations, as the demand for subtlety in both subject matter and performance crossed into the 20th century.

Because the quantum universe of human drama is, in fact, a bottomless well of source material, it is no accident that as copyrights grew stronger, neither playwrights nor audiences suffered from a dearth of appropriation. On the contrary, not only does O’Neill’s Long Day’s Journey into Night not need to take anything (in a copyright sense) from A Doll’s House, but no modern audience would want it to. By the time we get to Pinter’s minimalist masterpiece Betrayal, or anything by Beckett, we recognize that a finite universe of common themes is infinitely divisible into an endless range of expression through dramatic works.

The aesthetics that molded creative expression throughout the twentieth century reveal that originality is as limitless as copyright’s protections are nuanced. The skeptics who claim that contemporary authors suffer for want of more works in the public domain not only tend to misunderstand the creative process of individual authors, but they also fail to acknowledge that history has, at times, shown us what their ideal paradigm would look like. And there is a reason why we still refer to those authors who rely overmuch on using the works of others as hacks.

Image: Street types of New York City: Hansom driver standing in front of horse and cab. , ca. 1896. Photograph. https://www.loc.gov/item/2002699101/.