One of the commonest arguments from supporters of copyright is that creators need to be rewarded and that copyright is the only realistic way of doing that. The first statement may be true, but the second certainly isn’t. As Walled Culture the book (free digital versions available) notes, most art was created without copyright, when the dominant way of rewarding creators was patronage – from royalty, nobility, the church etc. Indeed, nearly all of the greatest works of art were produced under this system, not under copyright.
It’s true that it is no longer possible to depend on these outdated institutions to sustain a large-scale modern creative ecosystem, but the good news is we don’t have to. The rise of the Internet means that not only can anyone become a patron, sending money to their favorite creators, but that collectively that support can amount to serious sums of money. The first person to articulate this Internet-based approach was Kevin Kelly, in his 1998 2008 essay “1000 True Fans”:
A true fan is defined as a fan that will buy anything you produce. These diehard fans will drive 200 miles to see you sing; they will buy the hardback and paperback and audible versions of your book; they will purchase your next figurine sight unseen; they will pay for the “best-of” DVD version of your free youtube channel; they will come to your chef’s table once a month. If you have roughly a thousand of true fans like this (also known as super fans), you can make a living — if you are content to make a living but not a fortune.
It’s taken a while, but the music industry in particular is finally waking up to the potential of this approach. For example a 2023 post on MusicBusiness Worldwide, with the title “15% of the general population in the US are ‘superfans.’ Here’s what that means for the music business” reported that the incidence of superfans was probably even higher in some groups, for example among customers of Universal Music Group (UMG):
Speaking on UMG’s Q1 earnings call, Michael Nash, UMG’s EVP and Chief Digital Officer, indicated that an “artist-centric” model would look to increase revenue flow from “superfans” – or in other words, individuals who are willing to pay more for subscriptions in exchange for additional content.
“Our consumer research says that among [music streaming] subscribers, about 30% are superfans of one or more of our artists,” said Nash.
In January of this year, the head of UMG, Sir Lucian Grainge gave another signal that superfans were a key component of the company’s future strategy: “The next focus of our strategy will be to grow the pie for all artists, by strengthening the artist-fan relationship through superfan experiences and products.” Spotify, too, is joining the superfan fan club, writing that “we’re looking forward to a future of superfan clubs”. UMG started implementing its superfan strategy just a few weeks later. MusicBusiness Worldwide reported it was joining a move to create a new superfan destination:
A press release issued by Universal Music Group today stated that the NTWRK consortium’s acquisition of [the youth-orientated media platform] Complex will “create a new destination for ‘superfan’ culture that will define the future of commerce, digital media, and music”.
In Goldman’s latest Music In The Air report, it claimed that if 20% of paid streaming subscribers today could be categorized as ‘superfans’ and, furthermore, if these ‘superfans’ were willing to spend double what a non-superfan spends on digital music each year, it implies a $4.2 billion (currently untapped) annual revenue opportunity for the record industry.
For the music industry, then, it’s about making even more money from their customers – no surprise there. But this validation of the true fans/superfans idea goes well beyond that. By acknowledging the power and value of the relationship between creators and their most enthusiastic supporters, the music companies are also providing a huge hint to artists that there’s a better way than the unbalanced and unfair deals they currently sign up to. When it comes to making a decent living from creativity, what matters is not using heavy-handed enforcement of copyright law to make people pay, but building on the unique and natural connection between creators and their true fans, who want to pay.
In January, after a lot of back and forth with TikTok, Universal Music Group announced it would not be renewing its license with the platform for its catalog of music that users could use in their videos. UMG’s claimed reasoning for this was three-fold: TikTok wasn’t doing enough to combat deepfakes of the artists it represents, it wasn’t doing enough to combat copyright infringement on its platform generally, and the royalties it pays artists for their music wasn’t enough. These complaints are not uncommon from copyright holders to online platforms, of course. We could go into some detail as to why these complaints are, as TikTok’s response indicated, “self-serving.”
But instead, lets focus on how badly TikTok fucked this up on their end as well. That post I linked to at the jump includes the following open questions.
Aside from Universal’s massive catalog vanishing from TikTok’s library, the pressing question for many users is, what happens to old videos that were fine at the time, but now infringe on copyright?
TikTok didn’t respond to questions from Fast Company asking if Universal Music Group’s content suddenly switching to unlicensed could complicate copyright enforcement further. Right now, about 12 million TikTok videos use the hashtag #taylorswift. #Shakeitoff has 170,000, while #1989 has almost 600,000 with 8.5 billion views. Many of these include snippets of Swift’s music, or her performing at concerts, or fans singing to the car stereo.
Well, now we know what happens to at least a large portion of those old videos: chaos and silence. The UMG license expired and the catalog has begun to be pulled. The result is that all kinds of TikTok users are reporting that videos previously in good standing are now coming through partially or totally silent.
Sometimes, the app tags infringing videos with a notice reading, “Sound removed due to copyright restrictions.” Other times, it doesn’t, such as with a video Kylie Jenner posted back in September, set to one of Lana Del Rey’s songs. Now totally silent, it just carries a caption observing: “This sound isn’t available.” (The copyright-infringement giveaway was old user comments like “kylie and lana???” and “KYLIE IS A LANA GIRLIE???”)
One user complained that the video of her first dance at her wedding got muted because she and her husband picked an ABBA song. (Luckily, she added, she has a copy saved.) Others said some of their unpublished drafts have been stripped preemptively of sound, but live posts with the same music weren’t touched.
Meanwhile, UMG music still appears on the platform elsewhere, leading to confusion. And making this chaotic situation all the worse was the apparent decision by TikTok not say a whole lot to its users. Those open questions I alluded to at the beginning of the post? Apparently unanswered in advance by TikTok.
TikTok didn’t release any public statements in advance to help users prepare, or explain how to salvage content impacted by the Mute-pocalypse. It hasn’t posted any guidance to its pages for developers, advertisers, or the media. However, sellers on the app’s e-commerce platform, TikTok Shop, apparently received a message on Thursday walking through the process to change a video’s sound.
It’s one thing to play chicken with a major music publisher that is probably playing strongman with its music catalogue for reasons not entirely on the level. But to hang your own users out to dry as a result of that game of chicken is platform malpractice.
I’m fairly certain that TikTok doesn’t want to be 2024’s Twitch, in other words. All it had to do was communicate.
When will the legacy entertainment industry get it through their thick skulls that recording content is legal. We’ve done this. We’ve done it at the highest level. Tools that have substantial non-infringing uses are legal.
Well, at least in the US.
Which explains why the legacy companies often go overseas to do their dirty work. And that’s the case here.
For a while now, the recording industry has been absolutely furious that it was possible to download YouTube videos, with their ire directed mainly at one tool that enables such downloads, youtube-dl, a command line video downloader, that is also a plugin component for other download tools. It’s a useful tool. Journalists use it all the time. I have used it multiple times myself, most often when I’m trying to generate a transcript of a YouTube video, and the transcript tool I use requires an upload file.
It has, as the Supreme Court notes, substantial non-infringing uses.
But, of course, the RIAA never gives up its quixotic efforts to attack the open internet. So, it went to Germany, where copyright law is pretty consistently stupid. Sony Music, Warner Music, and Universal Music went after the hosting company, Uberspace, who was hosting the youtube-dl webpage in Germany.
Using the European equivalent of their argument in the US that failed (here it was that the code violated Section 1201 of the DMCA that forbids “circumvention” technologies), a German court sided with the labels back in April, but the site remained online until just recently, when, as TorrentFreak notes, the labels put up a bond that allowed for the enforcement of the original order, even while Uberspace appealed the ruling.
The ruling was published in March but Uberspace wasn’t required to take action right away. The hosting company decided to appeal, which meant that the youtube-dl.org site remained online, unless the music companies posted a €20,000 bond.
Initially, it didn’t appear that the labels would enforce the order, but that changed a few days ago. The plaintiffs informed Uberspace that they had posted the security, leaving the company no other choice than to take the site offline.
Torrentfreak spoke to Uberspace’s owner, Jonas Pasche, who seems (quite understandably) pissed off about this, but noted that his hands were legally tied:
“I received that information from the plaintiff’s side on July 27, with proof that they did the security deposit at a bank. So I no longer have a choice but to follow the judgment. Otherwise, I would face a fine of €250,000 or jail time,” Pasche notes.
The appeals fight continues in the meantime:
Uberspace will continue the legal battle and is prepared to fight the order up to the highest court possible. If the appeal is successful, Pasche will gladly unblock the site.
“We are confident that a higher court will overturn the judgment of the Hamburg Regional Court, so we will be able to unblock the site as soon as this happens,” he says.
All of this is basically just the major record labels being a fucking nuisance. The (again, perfectly useful for non-infringing purposes) youtube-dl code is still on GitHub where it can be downloaded. And, even if the labels somehow managed to kill youtube-dl, people would figure out other ways to download video content. It’s not going to stop piracy. And, really, at a time when the record labels are making record revenue thanks to the internet, maybe they could lighten up a bit on this infatuation with trying to make everything suck just because some tools might be used for infringing uses in some cases.
Get over it. Some people are going to infringe. If the industry and its lawyers spent like 20% of the time and effort they currently spend on “anti-piracy” efforts on just providing better content in more convenient ways to eager music fans, they’d do so much better.
But the whole industry has built up this stupid faith-based belief that “piracy” is the problem, rather than their failure to better serve their customers.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
Summary: Any site that relies on uploaded content has to be wary of hosting pirated content. In most cases, allegedly infringing content is removed at the request of rights holders following the normal DMCA takedown process. A DMCA notice is issued and the site responds by removing the content and — in some cases — allowing the uploader to challenge the takedown.
SoundCloud has positioned itself as a host of user-created audio content, relying on content creators to upload original works. But, like any content hosting site, it often found itself hosting infringing content not created by the uploader.
Realizing the potential for SoundCloud to be overrun with infringing content, the platform became far more proactive as it gained users and funding.
Rather than allow the normal DMCA process to work, SoundCloud allowed one major label to set the terms of engagement. This partnership resulted in Universal being able to unilaterally remove content it believed was infringing without any input from SoundCloud or use of the normal DMCA process.
One user reported his account was closed due to alleged infringement contained in his uploaded radio shows. When he attempted to dispute the removals and the threatened shuttering of his account, he was informed by the platform it was completely out of SoundCloud’s hands.
Your uploads were removed directly by Universal. This means that SoundCloud had no control over it, and they don’t tell us which part of your upload was infringing.
The control of removing content is completely with Universal. This means I can’t tell you why they removed your uploads and not others, and you would really need to ask them that question.
Unfortunately, there was no clear appeal process for disputing the takedown, leaving the user without his account or his uploads. A little less than 18 months later, SoundCloud finalized a licensing deal with Universal Music, shortly before the site’s subscription service debuted.
Decisions to be made by SoundCloud:
Does allowing labels to perform their own takedowns bypass protections SoundCloud should be granting to their users?
Are resulting licensing deals more profitable than subscription fees collected from users?
Is the risk of litigation too high to allow for a more equitable takedown system?
Questions and policy implications to consider:
Will alienating/shedding users via skewed takedown processes result in decreased funding in the future?
Do policies like this make SoundCloud an extension of major labels, rather than a platform that caters to independent creators?
Resolution: SoundCloud continues to allow labels like Universal to perform content removals without utilizing the DMCA process or engaging with the platform directly. Users are still on their own when it comes to content declared infringing by labels. This appears to flow directly from SoundCloud’s long-running efforts to secure licensing agreements with major labels. And that appears to flow directly from multiple threats of copyright litigation from some of the same labels SoundCloud is now partnered with.
We’ve highlighted the many problems with the various lawsuits against Cox Communications arguing that the company should be held liable for failing to wave a magic wand and stop all piracy from occurring on its service. The internet access provider was originally sued by music publisher BMG, and they got a judge who made it clear that he was not a fan of the internet, and didn’t see why it should be a problem for anyone to be kicked off the internet at all. Cox lost the case mostly because the company didn’t really follow its own internal repeat infringer policy. That ruling was upheld on appeal, leading the company to settle the case for $25 million.
Sensing an opportunity to cash in, all of the RIAA major record labels jumped in to sue Cox as well — and got the same exact judge, Liam O’Grady. After a trial earlier this month, a jury has now awarded an absolutely astounding $1 billion damages verdict. The verdict is so preposterous and so disconnected from reality, that the math is wrong. The jury verdict document said that each infringed work should lead to statutory damages to the tune of $99,830.29. And there were 10,017 works infringed. And thus, the total was $1 billion on the dot:
Except that if you multiply those two numbers, the total would actually be $1,000,000,014.93. The jury’s bad math saved Cox just about $15. Small favors.
Anyway, Cox has already made it clear that it will appeal, and I’d be stunned of such an amount held up. Everything about this is (1) crazy and (2) demonstrative of just how messed up and broken the “statutory damages” set up is for copyright. We’ve long wondered why statutory damages are even a thing in copyright, because they really don’t make any sense. But the fact that statutory damages can go as high as $150k per work infringed — even if there were literally no actual damages, raises significant 5th Amendment issues about due process (specifically, the wholly arbitrary nature of the jury award) and whether or not the award is “obviously unreasonable.”
In a Supreme Court ruling almost exactly 100 years ago (St. Louis v. Williams), the Supreme Court ruled about obviously unreasonable awards, noting that there’s a problem when “the penalty is ‘arbitrary and unreasonable, and not proportionate to the actual damages sustained.'” That certainly seems to be the case here. After all, a basic recounting of the facts seems important here. Yes, Cox did not adequately follow its own repeat infringer policy, which may have lost it its DMCA safe harbors, but a jury verdict of over $30,000 per work infringed requires the jury to say that each and every infringement was willful by Cox. And that’s crazy. Fucking up your own policies doesn’t mean that you willfully infringed on every single work that someone shared via your network. Indeed, Cox was actually one of the more aggressive internet access providers in kicking people off for infringing.
Just to put this in perspective, the entire RIAA made just under $10 billion in 2018 in the US. IFPI reported that the total globally was $19.1 billion. And they want to now say that piracy of 10,000 songs on one ISP should grant them $1 billion? Honestly, the award is so insane, and so out of touch with reality, I actually wonder if the RIAA might come to regret it, as it makes the strongest case I’ve seen yet for the sheer unconstitutional nature of statutory damages, without any evidence of actual damages, for copyright infringement.
As you’re probably aware, on January 1st of this year, we actually had a public domain day in the US for the first time in over two decades. Prior to that Congress (with the help of Hollywood lobbyists) had worked to continually extend copyright law whenever new works were due to go into the public domain. These extensions still seem to violate the spirit of the copyright clause in the Constitution, given that it is granting Congress permission to create such monopolies only so much as those monopoly rights “promote the progress.” Any reasonable interpretation of that clause means that copyright law should be allowed in cases where it creates the incentive to create. But it’s difficult to see how extending copyright law decades after the work has been created does anything to incentivize that work in the first place.
Nonetheless, this year, Hollywood finally realized that it was probably too much to ask to get another copyright term extension and finally let works from 1923 enter the public domain. One of the signature works of the public domain class of 1923 was the song Yes! We Have No Bananas by composers Irving Cohn and Frank Silver. As of January 1st, anyone was free to make use of that song. Indeed, in our own Public Domain Game Jam competition, we actually had not one, but two separate game entries based on “Yes! We Have No Bananas.”
But, of course, even if Hollywood wasn’t going to push for term extension, that doesn’t mean it won’t do what it always does, and pull other levers. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and friends/family singing it at a New Year’s Eve Party:
However, that video has now been “claimed” by Universal Music and various subsidiaries, meaning that they could “monetize” it or force it offline, despite them literally having no rights to speak of.
Yes, We Have No Bananas entered the public domain January 1, 2019, but you do you YouTube. No way I can see to dispute this ?ownership? claim? (It?s not a takedown, but an assertion.) cc @DukeCSPD@doctorow@mmasnickpic.twitter.com/sl8n8akxHD
YouTube’s statement is fairly vague in its own right:
Dear Glenn Fleishman,
Your video “Yes! We Have No Bananas, now in the public domain”, may have content that is owned or licensed by UMPG Publishing, Shapiro Bernstein, EMI Music Publishing, and UMPI, but it’s still available on YouTube! In some cases, ads may appear next to it.
If this is your performance of a 3rd party song then you can still make money from this video. Click here to change your monetization settings.
This claim is not penalizing your account status. Visit your Copyright Notice page for more details on the policy applied to your video.
– The YouTube Team
From that, it appears to be the publishing arms of Universal Music, meaning that it’s a claim on the underlying composition itself. And that is, definitively, in the public domain. At first I thought maybe they’d be claiming the specific sound recording, which might have been made at a later date, but since this is Glenn’s own recording, and all of the listed companies are from the publishing (composition) side of things, it appears that it’s just possible (if not likely) that Universal never took this work off its own books (perhaps it has no method of removing public domain material).
What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song, a few months back the “for limited times” part of the Constitution finally kicked in and they have no legitimate claim any more.
You may have heard the story recently of how the band REM got a video in a tweet taken down after Donald Trump had retweeted the video. CNBC has the details:
A satirical video using music from rock band R.E.M., which was shared by the Twitter account of President Donald Trump, has been removed from the social media site after a complaint by the publisher of the band’s songs.
A lawyer for Universal Music Publishing Group had reached out to Twitter on Friday asking that the video — which was first posted by another user — be taken down from the platform, a source familiar with the situation told CNBC.
The clip, which runs more than two minutes in length, plays audio from R.E.M.’s early-’90s hit single “Everybody Hurts” over excerpts from Trump’s Feb. 5 State of the Union address.
This started to spread around on Twitter, and I saw lots of people who hate the President celebrating over this victory in yanking the stupid video (and it was stupid) from his tweet. REM and bassist Mike Mills celebrated:
The assholes @CarpeDonktum created the meme. #PresidentAsshole retweeted it. Measures have been taken to stop it. @jack you need to get on this.
But, even if you absolutely loathe the President and his silly partisan gloating, you should be very concerned about this. And, I know, that some people are already screaming (because they did it already on Twitter when I first brought this up) that REM has “every right” to control its work how it wants to and that includes not letting the President use their music. That’s mostly true. And the video may, indeed, have been infringing.
But the problem is that this wasn’t used for any of the reasons that copyright specifically enables. It was flat out used because the band didn’t like the politics or the political message. In other words, it was using the law to stifle political speech. That was the entire intent behind the move (REM and Universal have let other similar clips remain up) — which REM and Mills are basically admitting with their tweets. They used copyright to censor a political message because they disagree with it. Copyright (in the US) isn’t supposed to be used that way. Other countries have something called “moral rights,” which would make such a takedown legitimate under moral reasons, but in the US copyright is explicitly an economic right, and not a moral one. And thus, any use of copyright — even if otherwise legit — is a form of copyfraud, in which the power of copyright is used not because of economic concerns, but directly to censor speech.
So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn’t like.
Late last year, after Australia proposed amending its copyright laws, which included some subtle language changes, the country approved the amendments and we immediately warned that this would be abused, feature-creeped, and otherwise utilized by the content industries to restrict access to the internet in favor of their own bottom lines. One of the subtle language changes mentioned above consisted of going from allowing site-blocking of sites where their “primary purpose” was infringing activity to allowing blocking of sites where their “primary effect” was infringing activity. This change was an important one, because it puts the onus for whether a site can be blocked on how users use the tool, rather than how it was intended to be used. And, of course, there is simply more subjectivity in “primary effect” than there is in “primary purpose”, leading us to warn that this would be abused.
The Federal Court action is being coordinated by Music Rights Australia, with the support of the Australasian Performing Right Association (APRA) as well as Sony Music Entertainment Australia Pty Ltd, Universal Music Australia Pty Limited and Warner Music Australia Pty Limited.
Stream-ripping sites allow users to record and save the audio streamed from a service such as Spotify or YouTube. The services have not previously been the subject of legal action in Australia. (In November, Sony Music emerged victoriousfrom a fight against stream-ripping service MusicMonster.fm in a German court, with the service being declared illegal.)
Now, as we’ve discussed in the past, the problem here is that there are a ton of legitimate uses for stream-ripping sites. I personally use them all the time to get audio-only for videos made public by educational institutions, by people that do how-to videos, lectures, etc. The primary purpose of stream-ripping sites is not infringement; it’s to rip streams, not all of which are infringing. But the primary effect? Well, that’s open to interpretation and the Australian government has bent over backwards to give the content industries the benefit of every doubt. Plenty of infringement happens with stream-ripping sites, because that’s how users choose to use them. But it’s not their purpose.
And yet, because of this poorly amended law, these sites are now staring down the censorship barrel.
Going back more than five years, we’ve been warning about the dangers of moving copyright enforcement down the stack, away from the actual hosting companies deeper and deeper into infrastructure. This was, of course, part of the goal of SOPA — to make infrastructure companies liable for infringement, and to force them to shut down entire sites. But that’s exactly a key part of our concern. Infrastructure players have only a single remedy: shut down an entire site, including anything that’s not infringing, to deal with claims (never adjudications) of infringing content. And yet, legacy copyright companies have been going after domain registrars for years.
We were particularly troubled by a ruling in Germany back in 2014 saying that a registrar could be liable for infringement on a site using a domain from that registrar. And while it’s taken years, it appears that that ruling has now been upheld by a higher court.
The quick details: Universal Music went after a domain registrar, Key-Systems, in Germany because it had registered the domain name for a torrent site H33t.com. The court forced the registrar to kill the domain, and on appeal that ruling has been upheld, with a specific ruling that a domain registrar can be liable for infringement on a site:
The Higher Regional Court of Saarbr?cken concluded Key-Systems can be held secondarily liable for the infringing actions of a customer if it fails to take action if rightsholders point out ?obvious? copyright infringing activity online.
This means that, if a site owner is unresponsive to takedown requests, Key-Systems and other registrars can be required to take a domain name offline, even when the infringing activity is limited to a single page.
Some may argue that the impact of this is limited, as the ruling notes two things: first, that liability only applies to a registrar that does nothing in response to notices of infringement, and second, that it applies to “obvious” copyright infringing activity. And that may limit some of the damage of such a ruling, but it opens up a ton of other questions. Are domain registrars now expected to police the content on domains they register? Because that’s often way outside of their areas of expertise, and like most such companies when put in that position, they will default to shutting down (or threatening to shut down) websites, rather than actually taking the time to understand the details and nuances (is it fair use? is most activity on the site non-infringing? etc).
Second, while many people seem to think that copyright infringement is always “obvious,” it is rarely the case. Yes, there are some cases where it could be described as “obvious,” but copyright is very specific and often very much dependent on context. And given how frequently we see people claim copyright infringement where none actually exists, you have to worry about what happens when copyright holders start claiming “obvious” infringement over things that are anything but obvious.
There are two key points here. Somehow, we went from a world in which copyright infringement was something that could only be determined by a court reviewing all of the facts (also known as due process) to one in which all that matters are mere accusations. And, second, by passing off the policing function to infrastructure players rather than the actual (potential) infringers and their hosts, all they have is the nuclear option of completely removing sites from the internet. That’s a dangerous combination and one that will undoubtedly lead to significant levels of censorship.
It’s pretty incredible that two industries — the film and recording industries — who used to pride themselves on their support of free speech, are now two of the leading industries pushing for vast censorship regimes of one of the best engines of free speech ever created.