Why Companies Keep Folding to Copyright Pressure, Even If They Shouldn't

from the fight-back-for-user-rights dept

The giant record labels, their association, and their lobbyists have succeeded in getting a number of members of the U.S. House of Representatives to pressure Twitter to pay money it does not owe, to labels who have no claim to it, against the interests of its users. This is a playbook we?ve seen before, and it seems to work almost every time. For once, let us hope a company sees this extortion attempt for what it is and stands up to it.

Here is the deal. Online platforms that host user content are not liable for copyright infringement done by those users so long as they fulfill the obligations laid out in the Digital Millennium Copyright Act (DMCA). One of those obligations is to give rightsholders an unprecedented ability to have speech removed from the internet, on demand, with a simple notice sent to a platform identifying the offending content. Another is that companies must have some policy to terminate the accounts of ?repeat infringers.?

Not content with being able to remove content without a court order, the giant companies that hold the most profitable rights want platforms to do more than the law requires. They do not care that their demands result in other people?s speech being suppressed. Mostly, they want two things: automated filters, and to be paid. In fact, the letter sent to Twitter by those members of Congress asks Twitter to add ?content protection technology??for free?and heavily implies that the just course is for Twitter to enter into expensive licensing agreements with the labels.

Make no mistake, artists deserve to be paid for their work. However, the complaints that the RIAA and record labels make about platforms are less about what individual artists make, and more about labels? control. In 2020, according to the RIAA, revenues rose almost 10% to $12.2 billion in the United States. And Twitter, whatever else it is, is not where people go for music.

But the reason the RIAA, the labels, and their lobbyists have gone with this tactic is that, up until now, it has worked. Google set the worst precedent possible in this regard. Trying to avoid a fight with major rightsholders, Google voluntarily created Content ID. Content ID is an automated filter that scans uploads to see if any part?even just a few seconds?of the upload matches the copyrighted material in its database. A match can result in either a user?s video being blocked, or monetized for the claiming rightsholder. Ninety percent of Content ID partners choose to automatically monetize a match?that is, claim the advertising revenue on a creator?s video for themselves?and 95 percent of Content ID matches made to music are monetized in some form. That gives small, independent YouTube creators only a few options for how to make a living. Creators can dispute matches and hope to win, sacrificing revenue while they do and risking the loss of their channel. Fewer than one percent of Content ID matches are disputed. Or, they can painstakingly edit and re-edit videos, or avoid including almost any music whatsoever and hope that Content ID doesn?t register a match on static or a cat?s purr.

While any creator has the right to use copyrighted material without paying rightsholders in circumstances where fair use applies, Content ID routinely diverts money away from creators like these to rightsholders in the name of policing infringement. Fair use is an exercise of your First Amendment rights, but Content ID forces you to pay for that right. WatchMojo, one of the largest YouTube channels, estimated that over six years, roughly two billion dollars in ads have gone to rightsholders instead of creators. YouTube does not shy away from this effect. In its 2018 report ?How Google Fights Piracy,? the company declares that ?the size and efficiency of Content ID are unparalleled in the industry, offering an efficient way to earn revenue from the unanticipated, creative ways that fans reuse songs and videos.? In other words, Content ID allows rightsholders to take money away from creators who are under no obligation to obtain a license for their lawful fair uses.

That doesn?t even include the times these filters just get things completely wrong. Just the other week, a programmer live-streamed his typing and a claim was made for the sound of ?typing on a modern keyboard.? A recording of static got five separate notices placed on it by the automated filter. These things don?t work.

YouTube also encourages people to simply use only the things that they have a license for or are in a library of free resources. That ignores that there is a fair use right to use copyrighted material in certain cases, and lets companies argue that no one has to use their work without paying since these free options exist.

So, when the labels make a lot of disingenuous noise about how inadequate the DMCA is and how platforms need to do more, they have YouTube to point to as a ?voluntary? system that should be replicated. And companies will fold, especially if they end up being inundated with DMCA takedowns?some bogus?and if they think the other option is being required to do it by law, the implicit threat of a letter like the one Twitter received.

This tactic works. Twitch found itself buried under DMCA takedowns last year, handled that poorly, and then found itself being, like Twitter, blamed for taking money out of the hands of musicians by the RIAA. Twitch now makes removing music and claimed bits of videos easier, has adopted a similar repeat infringer policy to YouTube?s, and makes deleting clips easier for users. Snap, owner of Snapchat, went the route of getting a license, paying labels to make music available to its users.

Creating a norm of licensed or free music, monetization, or automated filters functionally eviscerates fair use. Even if people have the right to use something, they won?t be able to. On YouTube, reviewers don?t use the clips of the music or movies that are the best example of what they?re talking about?they pick whatever will satisfy the filter. That is not the model we want as a baseline. The baseline should be more protective of legal speech, not less.

Unfortunately, when the tech companies are facing off against the largest rightsholders, it’s users who most often lose. Twitter is only the latest target, we hope they become the one to stand up for its users.

Originally posted to the EFF Deeplinks blog.

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Comments on “Why Companies Keep Folding to Copyright Pressure, Even If They Shouldn't”

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25 Comments
Samuel Abramsays:

Fair Use at scale is impossible to do well

We all know Masnick’s Impossibility Theorem. However, I would also say that Copyright at scale (especially on YouTube) is also impossible to determine. The US court system isn’t large enough to deal with the inundation of media being uploaded, and considering that since the Berne Convention, everything (now since 1926, or 1978 when the US started to have an "opt-out" copyright system) is copyrighted once it’s fixed in a tangible form, these big tech companies take the route of least resistance (which is still a fuckload of resistance!) and try to license everything. Fair use is just extremely subjective, and trying to apply it to the billions and billions of videos uploaded to youtube would take forever, so Google doesn’t do it until they get a high-profile dispute.

Full Disclosure: _I make music which gets licensed to YouTube via their ContentID system, so I benefit from ContentID. That being said, I license my music with an Attribution-Noncommercial Creative Commons license, so I wouldn’t object if any other service used my music (as long as it was not for commercial purposes).

tpsays:

Re: Re: Re: Re: Fair Use at scale is impossible to do well

Copyright at scale is also impossible to determine.

Copyright law already have a fix for this problem. Police do not investigate copyright issues for this reason. It’s up to the content owners to do their own investigation on their own copyrighted works. If this fix wasn’t available, copyright infringement investigations would eat tons of police resources, and they would have no other choice than criminally charge people after smallest complaints from copyright owners. Now this has been fixed so that copyright owners are doing the burdensome investigation, and this means determining the problem is left for copyright owner’s responsibility. Large amount of copyright infringement is never investigated or filtered out from the world, because copyright owners don’t have resources to track every pirate on the planet. It would be much better if police did the burdensome part, then we could get rid of all copyright infringement in the world. But sadly they just don’t have resources to do it.

This same problem means that copyright infringement damages are very high. Since all infringements cannot be tracked, the remaining found infringements need to pay 200k style infringement damages, to keep content owner’s and pirate organisation’s sizes in control. If police could find and procecute all pirate instances, then the damage awards could be significantly smaller. The damage awards in copyright cases are based on the "negative lottery" -pattern, i.e. one pirate pays 200k damage award, and then it’s the pirate’s own problem to collect the money from his fellow pirates. This way pirate ecosystem will handle their own money collection, and content owners don’t need to procecute too many pirates to fetch the money that belongs to them.

Rekrulsays:

During the middle ages, the Catholic church was one of the most powerful entities in the world. Even kings would bow down to its rules and heresy was one of the most serious crimes you could commit. Everyone had to live their lives by the rules that the church set.

Today, the copyright industry has become the new church and copyright infringement is now the most serious crime you can commit. Everyone has to live their lives by the rules that the copyright industry sets.

Anonymoussays:

Re: Re:

Even kings would bow down to its rules and heresy was one of the most serious crimes you could commit. Everyone had to live their lives by the rules that the church set.
Today, the copyright industry has become the new church

Hence, people often feel the need to include language such as "Make no mistake, artists deserve to be paid for their work." As if to say "we’re not being heretical; we accept your teachings and just disagree on some very minor details." Like how every story about Apple’s image-scanning feature starts with "of course any picture of a nude person under 18 years of age (or whatever age the USA subsequently decides) is completely awful and abusive, but…"

ECAsays:

Just for fun

https://hbr.org/2008/12/why-the-riaa-stopped-suing
what did the RIAA hope to gain from the lawsuits in the first place? It couldn?t have been for the financial gain. Not only did they lose as often as they won, but many of their intended victims didn?t even bother to show up in court. It wasn?t for the artists. Musicians weren?t seeing any benefit and wondered aloud what happened to the money that was collected because it certainly wasn?t sent to them.

Lets see, Piss off allot of People, Take them to court and find out suing for $1 million to the common person WASNT going to get you paid Much of anything, then the artists ASKING WHERES THE MONEY, and getting handed Pennies, after expenses.
35000 lawsuits and they hadnt gotten Any good percentage of those sharing music.
AND the big reason they stopped, they ran out of money.
Didnt they comment, ‘we dont care who owns it, we will sue everyone sharing music.’?

For all the Past, trying to hold onto WHAT THEY GOT, and get every penny out of the Old.
MPAA and the movie industry can show you How much it costs after 10 years of owning 1 movie. Go look at the $5 barrel and find your 10 year old movie. Your Profit was when it was new. After that you make Allot less. But you May sell more of the old video’s because you only have to make a $1 DVD/BR disk, Which is what you did in the first place and sold the movie at $20-50.

For al the IP and CR, how long should it last? I like the old 20 years. But that didnt count when someone Signed a CONTRACT. Those old contracts gave them Full ownership of the music, and the artists got spit on. Guthrie would be rich as hell If he got royalties for all his music.
If we took out all the corp contracts, and evaluated them. How many would be made Null and Void? There are only so many things you can do to a car and motor. Andthe tech you see Now days was created in the early 60’s.
Anyone remember when you had to PAY the phone company to have a telephone? That went to court and a BIG market was created.

So have fun with this, its a HUGE subject.

Anonymoussays:

One of those obligations is to give rightsholders an unprecedented ability to have speech removed from the internet, on demand, with a simple notice sent to a platform identifying the offending content.

We already went way beyond that when search engines started agreeing to remove non-infringing material (links) that references infringing material. If copyright holders had held such power in the 1980s, the film companies would’ve removed all telephone listings and mall signage for video rental stores (which they viewed as infringing).

That Anonymous Cowardsays:

" In fact, the letter sent to Twitter by those members of Congress asks Twitter to add ?content protection technology??for free?and heavily implies that the just course is for Twitter to enter into expensive licensing agreements with the labels. "

So government official are compelling changes in a private corporation & users speech and demanding they pay to create a system that benefits a small group of corporations who then want extra kickbacks on top.

Congress where they can’t even all agree that Covid is real, but they can violate the bedrock of the nation to "compensate" these corporate chicken littles who have never managed to prove a single fscking claim they have ever made.

Perhaps it is time we demand the money get taken out of politics, we have laws being passed that do not benefit actual citizens but magically help out corporate donors.

Committee assignments are given out to the loud mouths who fundraise the best, so sometimes they have to leave committee meetings to go gladhand some deep pocketed special interests to keep the party afloat.

In the middle of a pandemic they fought more about struggling citizens getting an extra couple hundred dollars while said nothing about giant chains getting money meant for small businesses.

They scream that some tech giants aren;t paying their fair share, yet they are on control of the laws that let it happen… they won’t change them because it might hurt their other special friends who are long term donors.

They created rent relief… yet put in nothing to make them hand it out & magically unused funds don’t have to be returned, they can be put into the states budgets… anyone still wondering why the relief isn’t going out faster?

So a whole bunch of citizens who tried to do the right thing during a pandemic & asked for a little help will be tossed out on the streets and if they manage to find a shelter they’ll end up exposed to maskholes handing out delta.

600K+ citizens are dead… and these motherfuckers are trying to strong arm Twitter into making deals with labels.
The last label to die was EMI.
The corpse sold for 8 billion, doesn’t seem like piracy killed it or that its holdings were worthless.

Pity so many citizens care more about making sure they have control over decisions people make for themselves, than holding elected officials who fail to represent our best interests to account.
Who cares if he diddled a hooker on the side, at least he voted to make abortion illegal for the 99th time!!

Anonymoussays:

Someone needs to take a record company to court for abusing the dmca by taking revenue from a video that uses a small amount of music eg an album review but what creator has the time or money to go thru the legal process that could be designed by Kafka
Well twiitter certainly has the money and resources to stand up to this bullying,
Twitch is owned by amazon its not short of money,
Basically the record company’s want All big tech company’s to licence all music eg
Let’s see if we can get paid for the same music again and again forever
And let’s pretend fair use does not exist
I

Jeffrey Nonkensays:

I’ve been dinged for copyright twice on Twitch. Once was for some kind of match with the ambiance background (birds chirping, basically). I found this thread while searching for the artist’s name. Apparently he’s done this crap before.

The other time was for playing the Borderlands 2 intro music. Well, yeah. I was playing the game, and since I was starting a new character, I played the intro too. I suppose I didn’t HAVE to, but it seemed relevant? Especially as an intro to the game for somebody new?

I note with annoyance that there was no option to claim that the match system was wrong; options ranged from "it’s my music" to "it’s fair use" and a promise to take it to court. Total horseshit. In the second case, yeah, it was a fair use claim; but in the case of the ambiance crap, it was similar to matching white noise. "You got it wrong" wasn’t an option. Because they’re never wrong, and the customer is always wrong.

I haven’t broadcast on Twitch in months. Got tired of their bullshit.

tpsays:

Re: Re:

"You got it wrong" wasn’t an option. Because they’re never wrong, and the customer is always wrong.

You either committed copyright infringement or you didn’t. It’s binary choice, one or the other is always true. If you did copyright infringement, then no amount of twisting the legal statues are going to get your ass away from the law’s reach.

Same it true for other selections possibile? Are you an author of the material? Or did you circumvent the copyprotection mechanism? How many pirated copies did you publish? These are all binary selections and any bullshit explanations how you read the law book under apple tree with your sheep is not going to help.

It’s just that your damage award is directly determined by the answers to these questions.

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