For years, “old model” artists have been told to quit whining. Every time some well-known and well-established creator has spoken out about the issue of mass copyright infringement online, or the hazards that monopsonies like YouTube pose for all creators, the response from the “new model” gurus has always been nauseatingly repetitive. These legacy artists should stop clinging to old models; they should get with the program, stop thinking about selling their works and protecting their copyrights because the internet has rendered such notions obsolete. Plus, if creators would just wake up to the new realities, they would see a whole world of opportunity to make a living from their work without the evil gatekeepers.
I and others have tried to warn new creators that the “evil gatekeepers” have not been bypassed in the new model, but have instead been replaced by one or two gatekeepers that are at liberty to change the terms and conditions for use of their platforms without any obligation to the creators who helped grow the platforms. The above video by Glove and Boots does a good job (and an amusing one) of describing a phenomenon that apparently a lot of YouTubers are experiencing lately–lost viewers, allegedly due to algorithmic changes on the platform.
I haven’t dug into the details of this story but have heard similar complaints for at least several months now and can’t say that I’m surprised to see cracks in the YouTube model. It will be interesting to see where things go from here. Presumably, YouTube needs to serve the creators whose works draw viewers to the platform, but I’m going out on a limb to predict that changes at YouTube will make the company look even more like a traditional gatekeeper than it already does. Correspondingly, I will predict that the new creators will discover that they have something to learn from the old creators. In particular, if artists like YouTubers are ever going to be in a position to negotiate terms for their work, they will realize that their power to do so is based on this old model called copyright.
NOTE: I’ve shared this video because it does a good job of explaining what they and other creators believe is happening on the platform. As for their use of clips from the film Thelma & Louise, I believe it would stand a decent chance of being held a fair use in an analysis, but that should not distract from the intent of this post.
Creators of every stripe must watch Miranda Mulholland’s May 24th speech delivered to the Economic Club of Canada. The musician, composer, and label-owner, with nearly 20 years of professional experience, does an excellent job of contrasting the realities of being a professional creator in today’s market against the rhetorical promises of the corporate leaders who designed that market. In addition to answering some of the classic tech-utopian “advice”—adapting, selling CDs at venues, touring, etc.—Mulholland focuses broadly on the subject of accountability and the fact that what we normally call “piracy” occurs on legal platforms. She says …
“Let’s look at the biggest music service in the world – YouTube. Did you know that 82% of YouTube users use it for music? It is supported by advertising and it is based on user uploaded content. But wait. Running a commercial site based on unauthorized uploading of copyrighted music is illegal, right?
YouTube says, it isn’t our fault – we are just the shop window. We didn’t put the items in the window, so we are not accountable for them. We are a passive intermediary. We are not liable for this massive copyright infringement.”
Because YouTube is currently a mix of licensed and unlicensed music, it is hard to get a fix on the percentage of infringing v. non-infringing uses. Anecdotally, though, musicians like Mulholland tell this story time and again. Still, she hardly asserts that business should return to the way things were before the digital revolution but instead looks forward, recommending specific actions that artists, industry, consumers, and government can take to get the formula right. And with very subtle differences, what’s good for Canada is good for the U.S. Her top item for government: End Tech Company Safe Harbors. (Okay, they spell it harbours up there.)
As has been widely reported by countless independent artists as well as large rights holders, the intended balance in the provisions of the 1998 Digital Millennium Copyright Act was soon overwhelmed by the unforeseen volume of copyright infringement on legal platforms. And because the largest of these platforms YouTube is part of a $700 billion-dollar empire called Google (Alphabet), litigation is an economic non-starter. Moreover, the major rights holders remain in an awkward limbo comprising negotiated deals with YouTube while still sending millions of notices of infringement of their works on the site.*
Since 2015, the US Copyright Office has been conducting a review of the DMCA; and many artists and creators have for several years been advocating some type of Take Down/Stay Down provision. One way or another, based on the case law to date and the financial power of providers like Google, it does seem as though only legislative action can recalibrate the intended compromise with rights holders by, among other things, clarifying the statutory conditions a service provider must meet in order to retain the liability shield known as the “safe harbor.”
Of course consumers will be told—and have been told—that any revision to the safe harbor conditions in the DMCA will destroy innovation, free speech, and the internet itself. We know the play. The Internet Association, along with “digital rights” activists like EFF will come out in full force against any proposed change. And they will all claim to be acting on behalf of consumers. But the bottom line is this: the DMCA presently enables massive corporations to grind up the dreams and labors of independent creators; and over time, consumers who want new works—or who wish to become creators themselves—will very likely find themselves part of the piling dust.
Based on just a sampling of the anecdotal experiences described by rights holders, both large and small, who attempt to use DMCA for enforcement, it is very likely that YouTube would be found to have already abrogated its “safe harbor” shield through non-compliance with one or more provisions of the DMCA as written. Of course, for us to prove this, somebody would have to file a new copyright infringement claim against the company, and that won’t happen—not because a plaintiff would lack standing on the merits, but because Google is simply too big to sue. Ironically enough, though, the perception endures that the 300lb gorillas in this story are still Hollywood and the recording industry.
Viacom v. YouTube Is Unfinished Business
Readers probably remember that ten years ago, when YouTube was new, and only recently acquired by Google for $1.65 billion, the video platform was sued for infringement and vicarious infringement by a class of rights holders led by Viacom. In 2010, the District Court granted a summary judgment in favor of YouTube, holding that the platform was entirely shielded by §512 of the DMCA; but on appeal in 2012, the Second Circuit called the lower court decision “premature,” finding that there were several triable issues of fact, and remanded the case back down.
Because the parties settled in March of 2014, just days before a new round of oral arguments was scheduled back at the Second Circuit, we’ll never know whether or not the rights holders would have been able to demonstrate to a jury that YouTube was failing to comply with key provisions in the DMCA and thus forfeit its safe harbor. What we do know is that Viacom had provided evidence that YouTube’s founding executives, in its earliest days, were making calculated decisions to not remove material they knew to be infringing because the content was driving traffic. We also know that the circuit court held that there were statutory issues warranting further discovery where YouTube might have been found wanting in holding up its end of the DMCA bargain.
The circuit court opinion also cites YouTube’s own internal audit at the time, which revealed that 60% of its content was copyrighted content and that only 10% of that material was authorized. So, it is no exaggeration to say that while the Viacom case dragged on, YouTube grew its dominant position on the backs of creators, who were involuntarily “sharing” their work for no return.
Since 2010, the platform has grown from 24 hours of video uploaded every minute to 300 hours every minute; and the assumption has been that a service provider cannot know, amid all that material, what is and is not infringing. Indeed, one of the formative principles of DMCA was that ISPs would not have to affirmatively monitor for infringement, but would instead be required to respond to each individual infringing use upon notification by the rightful owner of the copyright.
The flaw in this mechanism is now obvious and its consequences for creators are clear. A platform like YouTube is able to monetize infringements at warp speed while responding to claims at the pace of a horse and buggy by contrast—all while generating so much ad revenue that the company becomes untouchable via litigation. At the same time, shielded from liability for mass infringements on its own platform, YouTube enjoys an aggressive bargaining position that has enabled it to pay far lower rates than competing services for those works they do license.
There is a disconnect between the intent of the DMCA and the manifest reality. And what’s falling through the statutory cracks are the middle-class livelihoods of thousands of creators like Miranda Mulholland. Meanwhile, the promise that digital-age models replace old models for the artists who learn to “adapt” has been consistently disproven by creators who have actually done everything the digital gurus told them to do.
I suspect the prospect of ending safe harbors, as Mulholland proposes, is a non-starter. The principle of limiting liability for sites hosting User Generated Content remains sound; and it cannot be discounted that a site like YouTube must also manage an appeals process for wrongful claims against creators who build successful channels on the site and do not carelessly infringe copyrights. Nevertheless, it cannot be denied that YouTube walks, talks, bargains, and earns money like a very actively-managed distribution network rather than the “dumb pipe” they claim to be when threading the loopholes of the DMCA.
While digital rights activists criticize every possible solution—from voluntary measures to legislative amendment—the fact is we now have 20 years worth of data not available to the authors of the DMCA in 1998. These data show what artists like Miranda Mulholland have tried repeatedly to explain on the most human level—that they’re getting clobbered by an industry making fortunes from their labor. Copyright law has always had to evolve when confronted with new technologies and new paradigms. And in context to the lifespan of the public internet, the DMCA is ancient history.
*The irony is not lost on me that Mulholland’s video is best shared via YouTube, but that’s part of the challenge. They’re pretty much the only game in town.
In January, Proctor & Gamble’s Chief Brand Officer Marc Pritchard put the digital advertising world on notice that his company will no longer tolerate the waste or opaqueness of the advertising ecosystem. “We’ve been giving a pass to the new media in the spirit of learning,” Pritchard stated in his keynote address to the International Advertising Bureau (IAB). “We’ve come to our senses. We realize there is no sustainable advantage in a complicated, nontransparent, inefficient and fraudulent media supply chain.” With over $7 billion in online spending, P&G is the largest among U.S. advertisers; and where they lead, the rest of the industry is likely to follow.
I wrote in December 2015 about a report published by the IAB, which revealed that significant flaws in the digital advertising supply chain—invalid traffic, infringed content, and malware—were costing advertisers just over $8 billion/year in waste. That represented about 16% of global, digital ad purchases. Although ad spending has continued to grow since that report was written, if Pritchard’s address represents the mood of advertisers, they’re frustrated with two things above all: the inability to control where their ads appear, and the lack of consistency and transparency in reporting by the major platforms.
In response, Pritchard has laid out the new demands P&G will be making of its advertising partners for 2017, including third-party measurement of metrics (rather than self-reporting by the platforms) and an insistence that all partners become TAG-certified. It was in February of 2015 that the Trustworthy Accountability Group (TAG) launched this industry-led, voluntary initiative to separate the quality, legal sites from the garbage of the internet. TAG was seen by copyright holders as a major step forward because the initiative sought, among other things, to keep brand advertising off the large-scale piracy sites.
The Ad Exchange is Too Opaque
The underlying problem for advertisers is the automated exchange in which ad impressions are purchased from the available supply—a system that provides advertisers with limited control over where their ads appear and no standardized reporting on the return received for their investments. An advertiser buys, say, a million impressions, and when those impressions are reached, the advertiser buys another million impressions; but there is very little insight into the nature of those impressions. It’s a process Prichard calls “murky at best and fraudulent at worst.”
The recent “discovery” of Fake News illustrates the problem. Appropriately used, the term fake news refers to hucksters who figured out that they can make up to several thousand dollars a month just by inventing provocative, click-bait headlines that draw traffic to sites that have nothing to do with actual news. These site owners do considerable harm to the world while siphoning value from advertisers who would not otherwise choose to feature their brands among this kind of junk content.
Recently, the News Media Association (NMA) of the UK asked the British government to investigate the impact that Google and Facebook are having on legitimate news by supporting fake news with their “murky” advertising platforms; and the NMA also cites what appears to be a growing problem of ads supporting terrorist propaganda. As I’ve reported in the past, the lack of control in these ad exchanges is why major brand commercials end up on sites like YouTube alongside ISIS recruiting videos or other violent-extremist propaganda.
Brooke Singman for Fox News, notes that year’s Hyundai Super Bowl spot, which pays tribute to U.S. troops serving overseas—and which cost Hyundai about $5 million to run on TV—appeared on one of YouTube’s terror-linked channels. And while YouTube’s official statements express a zero-tolerance policy for terror-supporting accounts and videos, the problem persists while parent company Google remains typically unclear about its ability to remove targeted content or accounts.
With over 300 videos uploaded to YouTube every minute, I don’t think anyone doubts the scope of the challenge; but it is certainly true that the copyright holders, for instance, often see Google as magically omniscient where its own interests are at stake and then mortally fallible in the service of others’ interests. So, I imagine if P&G and other advertisers are truly drawing lines in the sand this year, Google may suddenly discover an extraordinary capacity to weed out terrorist, criminal, and other undesirable content from the YouTube platform.
In fact, Eric Feinberg, CEO of GIPEC says that he can very quickly identify and organize questionable content on major platforms with the system his company has developed for scanning hashtags in multiple languages. “Because our technology can anticipate key communications strands and images being used by terrorist and hate-speech groups, the system can block, quarantine, and sandbox this kind of content for review before it’s published, thus reducing the chance that ads will appear before or next to undesirable content.”
Where this issue overlaps with security, it is possible that the major social media platforms will begin to feel more pressure from the government to stop profiting—however inadvertently—from terrorist propaganda on their sites. Depending on what form that takes, we are likely to see some civil-libertarian backlash to these policies and also to expect reality to get lost in the rhetoric on all sides. But for sure money talks. And if the advertisers are demanding that “new media” start to clean house and provide some of the accountability and quality they’re used to from “old media,” my guess is they’re going to get what they want or find other ways to spend their $200 billion.
The Illusion of More is my personal blog from December 2011 to December 2025. As of February 2026, I am no longer posting new blogs or other content, but I hope you enjoy this archive. Please do not attribute any of my writings here to my current or previous employers.
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