Why companies keep bowing to copyright pressure, even if they shouldn’t
The giant record companies, their association and their lobbyists have managed to get a number of members of the US House of Representatives to pressure Twitter to pay money that it doesn’t owe, to record companies that have no rights to it, against the interests of its users. It’s a playbook we’ve seen before, and it seems to work almost every time. For once, let’s hope a business 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 responsible for copyright infringements committed by such users as long as they fulfill the obligations set forth in the Digital Millennium Copyright Act (DMCA). One of those obligations is to give rights holders an unprecedented opportunity to have speech removed from the Internet, on demand, with a simple notification sent to a platform identifying the offending content. Another is that companies must have a policy to terminate “repeat infringer” accounts.
Not content with being able to remove content without a court ruling, the giants who hold the most profitable rights want platforms to do more than the law requires. They don’t care that their claims result in the suppression of other people’s speech. Most of the time, they want two things: automated filters and get paid. In fact, the letter sent to Twitter by these members of Congress asks Twitter to add “content protection technology” – for free – and strongly implies that the right course is for Twitter to enter into expensive licensing deals with the labels. .
Make no mistake, artists deserve to be paid for their work. However, the complaints the RIAA and the record companies make about platforms are less about what individual artists do, and more about the control of record companies. In 2020, according to the RIAA, revenue increased nearly 10% to $ 12.2 billion in the United States. And Twitter, anything else, isn’t where people go for music.
But the reason the RIAA, the labels and their lobbyists have taken this tactic is because, so far, it has worked. Google has set the worst possible precedent in this regard. Trying to avoid a fight with the main rights holders, Google voluntarily created Content ID. Content ID is an automated filter that analyzes downloads to see if any part, even a few seconds, of the download matches the copyrighted content in its database. Matching can result in a user’s video being blocked or monetized to the claimant rights holder. Ninety percent of Content ID partners choose to automatically monetize a match, that is, claim ad revenue from a creator’s video for themselves, and 95% of Content ID matches made with music are monetized in one form or another. This only gives small independent YouTube creators a few options for a living. Creators can play matches and hope to win, sacrificing income while they do so and risking losing their channel. Less than one percent of Content ID matches are disputed. Or, they can meticulously edit and re-edit videos, or avoid including almost any music and hope that Content ID doesn’t record a match on glitches or a cat’s purring.
While any creator has the right to use copyrighted material without paying the rights holders in circumstances where fair use applies, Content ID routinely embezzles money from creators like these. ci towards the holders of rights in the name of the repression of the infringements. Fair use is an exercise of your First Amendment rights, but Content ID requires you to pay for this right. WatchMojo, one of the biggest YouTube channels, estimated that in six years, roughly $ 2 billion worth of ads went to rights holders rather than creators. YouTube is not afraid of this effect. In its 2018 report “How Google Combats Piracy,” the company states that “the size and effectiveness of Content ID is unprecedented in the industry, providing an effective way to generate revenue through the unforeseen and creative ways that fans reuse songs and videos ”. In other words, Content ID allows rights holders to take money away from creators who are not required to license their fair and lawful uses.
That doesn’t even include the times when these filters go completely wrong. Just the other week, a programmer broadcast live its typing and a claim was made for the sound of “typing on a modern keyboard”. A static record received five separate notices placed on it by the automated filter. These things don’t work.
YouTube also encourages users to only use items they are licensed for or are in a free resource library. This ignores the fact that there is a fair use right to use copyrighted material in some cases, and allows companies to argue that no one possesses to use their work without paying since these free options exist.
So when labels make a lot of noise about the inadequacy of the DMCA and the need for platforms to do more, they have YouTube to denote a “voluntary” system that should be replicated. And businesses will back down, especially if they end up being inundated with DMCA withdrawals – some bogus – and if they believe the other option is required by law, the implicit threat of a letter like the one Twitter received.
This tactic works. Twitch found itself buried under DMCA withdrawals last year, mismanaged it, and then ended up, like Twitter, accused of taking money out of musicians’ hands by the RIAA. Twitch now makes it easier to remove claimed music and video clips, has adopted a repeat infringement policy similar to YouTube’s, and makes it easier for users to remove clips. Snap, owner of Snapchat, has gone for a license, paying labels to make music available to its users.
Creating a standard for licensed or free music, monetization, or automated filters functionally eviscerates fair use. Even though people have the right to use something, they will not able To. On YouTube, reviewers don’t use clips of the music or movies that are the best example of what they’re talking about – they pick whatever will satisfy the filter. This is not the model we want as a benchmark. The baseline should be more protective of legal discourse, not less.
Unfortunately, when tech companies face off against the biggest rights holders, it’s the users who lose most often. Twitter is just the latest target, we hope it becomes the one to stand up for its users.