Musicians vs the DMCA

Musicians vs the DMCA

Musicians vs the DMCA

The other day, Pitchfork, Rolling Stone, Music Row, and others covered a story about big name musicians like U2, Paul McCartney, Garth Brooks, Taylor Swift joining together with major record labels and the Recording Industry Association of America (RIAA) to once again crying foul against the Digital Millennium Copyright Act (DMCA), a law passed in late 1998 concerning copyright in the digital age.   The complaint reads as follows-

"One of the biggest problems confronting songwriters and recording artists today is the Digital Millennium Copyright Act. This law was written and passed in an era that is technologically out-of-date compared to the era in which we live. It has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish. Music consumption has skyrocketed, but the monies earned by individual writers and artists for that consumption has plummeted.

The DMCA simply doesn’t work. It’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application. The tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago. We ask you to enact sensible reform that balances the interests of creators with the interests of the companies who exploit music for their financial enrichment. It’s only then that consumers will truly benefit."

There is a lot wrong with this complaint and a lot wrong with these artists' and the RIAA's stance towards copyright in general.  The complaint refers to the safe harbor sections provided by the DMCA, section 512 of the Copyright Act.  The idea that a "notice and takedown" system is too cumbersome because artists cannot spare the resources to actually find an issue takedowns for all the material that might exist on websites that allow users to upload content.  I can only imagine they're directing their frustration at YouTube, in particular,because YouTube is still a popular place to find and listen to music.

I do not support their claims in any way.  The safe harbor provisions are some of the best parts of the DMCA and the Copyright Act in general. That musicians and RIAA may rail against it, calling it an out-of-date law shows how out of touch with reality they really are.  If anything, the DMCA's safe harbor provisions were ahead of their time, implemented on the prediction that the future would be even more digital than it was in 1998.  The core concept behind section 512 says that service providers are not liable for content of their users.  If I upload a copyrighted movie to YouTube, I am at fault, not YouTube.  It also sets up the "notice and takedown" rules which state that service providers must take down content that copyright owners claim is an infringement of their rights.

A number major points here-

First, section 512's safe harbors are what allow digital services and communitities to be what they are today.  Without it, YouTube, Soundcloud, Reddit, Facebook, Twitter, Pinterest, and every other service that allows someone outside of the service to upload or create content would be held liable for any potential copyright infringement, which carries civil and/or criminal penalties.  To show how ridiculous the scenario is, let's do some math.  Around 400 hours of video are uploaded to YouTube every minute, and the average video length is 4 minutes 20 seconds, so roughly 5,500 videos are uploaded every minute.  Each day, roughly 26% of YouTube videos are removed for infringement, so 26% of 5,500 is 1,430 videos every minute "violating" copyright law according to rights holders (I say "violating" in quotes on purpose, more later).  That's 85,800 videos per hour or 2,059,200 videos per day.  Next let's take the maximum civil infringement penalty that the RIAA and others love to go for, $150,000 per infringement.  Multiply that by the number of videos per day and we get $308.9 billion per day of alleged copyright infringement, or $112.7 trillion per year worth of copyright infringement.  That's more than all the hard money existing in the world!  What's sad is that the RIAA, MPAA, and others genuinely feel that is money they deserve.

Which leads to the second point, copyright as a method of profit.  As I address in my thesis and policies on intellectual property reforms, the purpose of copyright is NOT to compensate the creator of the content.  The United States Constitution clearly states under Article I, Section 8, Clause 8 that the purpose of copyright is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  There is no promise of money, no guarantee of compensation, nothing of the sort.  The only thing secured are exclusive rights.  What they do with those rights and how successful those efforts may be in the reality of the time is an entirely different story.

Enter my third point: greed and hate of the digital age.  Taylor Swift, Prince, Garth Brooks, and many other artists hated that people can access their music so easily, that they can play it at a whim and that musicians are not compensated for it.  They hate free.  It's not about the art, it's about the money.  You can read for yourself tons of articles on the subject.  The end result is that musicians keep their music, that which fans love, away from fans by refusing to offer it in ways that they feel doesn't net them enough profit.  In a way, that's an artist not connecting with fans, but giving them the finger, saying "Did you pay for my music?  No?  Get lost."  I almost feel that artists and the RIAA want compensation every time a song is played, no matter where it is played.  If I played Journey's "Don't Stop Believing" 100 times in my car, I should pay them for 100 plays... or something.

This segues into my fourth point on RIAA accounting.  The RIAA and MPAA are notorious for screwing over artists.  Techdirt had a great article some years ago explaining how major record label artists rarely make money from album sales.  Based on the data, for every $1,000 in album sales, the RIAA pays artists about $23.  That explains why huge artists like Lyle Lovett can sell 4.6+ million albums and not make any money on those sales.  Similar problems exist in the streaming music world.  Thanks to a leak of the Sony contract with Spotify we can see just how much money some of these streaming services are paying, how much money the RIAA is making... and they are making a lot of money.  The artists get screwed, but the RIAA and the "industry" benefits, as this article outlining pre and post-tax share of revenues shows.  What's funny is that study showing major labels making far, far more money than artists was commissioned by the labels and is supposed to be a good thing.

Thus, my fifth point is control.  The RIAA and mega musicians want to control every play, every listen, every outlet which their music can be consume.  They use copyright to claim it is their exclusive right.  It is.... to a degree.  Circling back to my first point, the digital world allows for content creation and content sharing in amounts never before seen in the history of the world.  More content is created in a single month today than in any century before the 20th, I'm guessing.  As such, humans cannot possibly monitor all the content that exists.  With 1,430 videos per minute, it would take more than the world population to watch every YouTube video uploaded every minute, in full, to ensure nothing violates copyright.  That, again, is why safe harbor provisions exist: because of that kind of difficulty.

Furthermore, there is a big positive component to copyright called "fair use," my sixth point, which has faced consistent backlash, with the RIAA even going so far as to say ripping your legally bought music CD is not fair use. Being able to lawfully consume the content they purchased in the time, place, and manner of their choosing is not something the RIAA and, apparently, these major musicians wish to see happen.  Fair use and music came to a head in recent years when Prince issued a takedown of a YouTube video featuring a baby dancing to his music.  A lawsuit ensued and last year in 2015, the Ninth Circuit Court of Appeals ruled against Prince, saying that copyright holders must consider fair use before issuing takedowns to services like YouTube.  The recording industry does not like fair use, it does not like remixing, it like consumers to be able to use their music in creative ways or even include their music by accident in anything that may be distributed to someone else because, as the previous point said, it's all about control.  Sony has even gone so far as to use YouTube's ContentID system to demand a licensing fee for videos claiming fair use.... which is precisely the opposite of what fair use is all about.

But this is nothing new.  DMCA abuse by musicians and the RIAA is point seven, and it has been happening for years to combat fair use, remixes, and even indie songs.  Case in point, Universal Music Group (UMG) licensed an indie artist's music for background music in one of their audiobooks, but then decided to start issuing DMCA takedown notices on YouTube for videos that featured that track, essentially claiming ownership of the artist's music which they absolutely did not have. The indie artist who does own the copyright contested and UMG came back affirming their claim of ownership!  YouTube's ContentID system also skews favorably towards copyright holders, or whomever claims to be the copyright holder, because the takedowns are automatic and the appeals process typically ends up favoring the takedown issuer with the only other option being "going to court."

Now there is some reality to music in the digital age.  As my eighth point, which relates back to my first and fifth points, I must acknowledge that technology has made it simultaneously easier and more difficult for artists.  It is far easier for a musician to get content out there for people to discover or listen to than any point in human history; this also means there is that much more competition in the music industry than any other point in human history.  Competition drives down prices and weeds out those who cannot sustain.  As Peter Drucker says, the sole purpose of a business (which a musician is) is to create a customer and the means to do this is through innovation and marketing.  The ability to stand out and differentiate, the ability to connect with fans will separate those who can earn a living from their craft and those who cannot.  Saturation of a market can also lead to lower prices The musicians who signed the DMCA reform pledge are all super rich already and free to say "screw you if you don't buy my music."  That's a poor long term business model, however.

And that's what it all boils down to.  Legacy business models, out-dated thinking about how the economics should work, greed, control, and selfishness leads to a desire to implement technology that is just not possible.  There is no way for technology to screen every bit for infringement, no way for technology to rule on fair use, no way for technology to be 100% certain about ownership of content.  Technology is stupid in that regard.  Pushing for changes either to remove safe harbor provisions or demand manual review of all user generate content will destroy the greatness of the internet as it exists today.  But I guess the musicians backing this idea don't care about that, even if it does mean they might lose out on millions in revenue or millions of new fans finding their music through the glory of free or ad-supported services.

That's my response to this nonsense.   There is still plenty of opportunity available for artists- big and small- to make an impact on the world, to get their music heard, to court fans and make a living doing what they love for people who truly care about their creations.  The digital world provides ease of access, ease of distribution, and the opportunity to connect that should not be ignored, belittled, or mistreated.  If the music industry would innovate more, like say by offering better/cheaper products as they did in Norway, maybe they wouldn't feel the state of music in America was so grim (especially when it's not).


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