White Noise Story Generates White Noise on Copyright

TorrentFreak recently reported a story about Australian music technologist Sebastian Tomczak receiving several copyright claims on a work he created and uploaded to YouTube. The work itself is ten hours of white noise he recorded using the noise generator built into the audio application Audacity. Tomczak’s interest, as described by Andy at TF, is “listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods — e.g. distracted, focused, sleeping, waking, working, etc.”

After Tomczak posted his video to YouTube, it was targeted by four rights holders claiming his track as their property; and all of these entities availed themselves of the Content ID option to monetize his video. Initially designed as a compromise solution, a Content ID account is available to rights holders who meet certain conditions, which enables automated identification of a work being used by another YouTuber. Once flagged, the account holder has the option to let the use go, request a takedown, or monetize the use by sharing in any ad revenue generated by the use. Needless to say, the system is not perfect, and among its flaws is that it may misidentify a work. Not surprisingly, many of the comments attached to the TF story viewed the white noise example as yet another example of the unfairness of copyright, though some of the comments are more appropriately critical of YouTube. Because to the extent anyone can give this particular incident much consideration at all, it really is a YouTube problem, not a copyright problem.

Keep in mind that in the world outside the demolition derby of the internet, claiming a copyright and defending a copyright are not necessarily the same thing. If Mr. Tomczak and the “publishers” making a claim against his video were squaring off to litigate, I would hope that attorneys for all parties would advise that nobody has a reasonable copyright claim in white noise. White noise by itself does not meet the minimum standard of originality for copyright and is no more protectable than an A-Flat. As much as critics like to claim that copyright is a legal system woven from pure whimsy, it isn’t quite so random in practice as it may seem when filtered through the internal policies of a business like YouTube.

And here’s a bombshell observation: the internet is brimming with people who figure out how to game the system to generate money for themselves. It could be some guy making click-bait fake news, or it could be one of these “distribution” companies that automate the process of monetizing content with which they have no relationship. This seems to be the nature of the claimants in Tomczak’s case, and these businesses are all over the web—offering to distribute your music, art, films, etc. for you. Just upload and wait for the money to arrive.

As an aside, I can tell you that when a friend of mine captured a serendipitous video that went viral, he was chased pretty aggressively by two or three of these companies offering to monetize the clip for him. These businesses were eager enough to get hold of him that they called friends and relatives in various states in their frenzy to get his video clip into their system ASAP—all for one clip in a universe of trillions of clips. Clearly, it’s a numbers game. If they can license x number of clips and monetize them for y dollars, then it’s worth the investment of z time chasing after people like my friend. There’s nothing wrong with what these companies do, per se, but they shouldn’t be confused with traditional rights holders—and certainly not with the interests of professional creators.

It should be obvious that these automated, or semi-automated, distribution systems would leverage the sound-matching capability of YouTube’s Content ID system and that they will inevitably monetize files that belong to other people. In fact, I wouldn’t be the least bit surprised to learn that there’s money to be made by using a cover of a song to try to monetize a track uploaded by the original artist. In July last year, I noted that singer/songwriter Bob Seger’s work was not on Spotify but that a whole catalog of covers by Bob Segar were available and are just good enough copies of Seger’s sound that many listeners might not immediately notice. In a similar way, what’s to stop an “innovator” from using a nearly-matching track to syphon money away from a creator who’s put her music on YouTube to monetize for herself? Suffice to say, copyright isn’t the bug in the system. The system is ideal for scammers and predators.

If there’s an unscrupulous way to squeeze a few dollars out of the advertising revenue stream flowing through the web, somebody’s already doing it. The extent to which Tomczak’s example is loosely predicated on the DMCA is a distraction from the larger picture—that this kind of chicanery is not the fault of copyright law but is more profoundly the realization of the free-for-all, pirate ethos that folks like TF’s fans have long advocated for the web. Piracy is a multi-million-dollar black market that, among other things, teaches people how to profitably game the system. So, it’s curious to see TF readers complain about legitimate copyright owners in context to a story in which a) no copyrights actually exist; and b) the false claimants against Tomczak’s video are doing exactly what the pirate sites do all day long—monetize work somebody else produced. As I wrote in my response to Pirate Bay founder Peter Sunde in 2015, this is the internet you asked for. And it’s full to bustin’ with white noise.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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