As David noted, a post in Digital Music News about DMCA notices sent to Facebook simply got it entirely wrong. The real issue is that Facebook has been getting away with incentivizing (also called inducing) its users to make illegal copies of recordings, has looked down its billionaire noses at artist rights, and actually sells artist names as advertising keywords. And getting away with it until now. The real issue begs the real question–what took so long for the publishers to catch on? Also, why is it just Universal sending the notices?
Not to mention the elephant in the room. Why does the U.S. Department of Justice allow Facebook to get away with it? That’s actually the easiest answer–crony capitalism.
How does Facebook induce infringement? Simple. If you want to post a video on Facebook you have a choice–post a link to a video hosted on a semi-licensed site like YouTube or Soundcloud or upload that same.video on Facebook. If you post the link, Facebook punishes you by ranking your post lower than if you upload that video to Facebook. This encourages users to upload videos to the unlicensed Facebook platform rather than link to a licensed platform. And however we might feel about YouTube and Soundcloud, at least they try to get some licenses.
Facebook basically tells artists and especially songwriters to fuck off. Hence the DMCA notices now coming from Universal and we have to believe that more are coming from others. Although we doubt that Mark Zuckerberg feels much of a threat from law enforcement.
The Digital Music News post appears to be misleading in at least one other way: If you just read the post, you would think that Universal was only sending takedown notices on artists with covers. It is highly improbably that Universal is just sending takedown notices for covers, which is all that the post discusses. It is far more likely that Universal is doing on Facebook what labels typically do, which is send takedown notices for all infringing uses–including covers.
Because guess what? If you cover a song in a video, you need to get permission from the songwriters (or their publisher who the songwriter authorized to issue licenses). That’s called…wait for it…a sync license. And if you want to make copies of it or make it available for streaming you have to get those reproduction and public performance rights, too, just like you would expect to be treated if it were your own song.
And since the covering artist didn’t get a license and since Facebook are assholes and have refused to get licensed for music on any level, then the cover is infringing and subject to DMCA takedowns. One condition of Facebook getting the safe harbor (which we don’t think they should be entitled to at all given that they are knowingly inducing infringement) is that they adopt a repeat infringer policy–remember how Cox Communications lost big time to BMG because they failed to have a meaningful repeat infringer policy? Facebook is way further up the infringement chain than Cox ever was, so they have a whole lot more to lose in what promises to be the mother of all infringement cases.
Which–by the way–Facebook richly deserves to lose, pun intended. Not that Mark Zuckerberg is losing any sleep about that infringement exposure.
So the reality for songwriters is that Facebook has been asking for the full DMCA treatment for a long time. The fact is that they are serial infringers, refuse to get a license and are a big fat target. If some covering artists get caught up in this process, then so be it. They’re only getting repeat infringer notices because they are repeat infringers–induced by Facebook to be sure, but repeat infringers right along side Mark Zuckerberg. Except they’re not getting invited to the same dinners that Mark is.
And to add insult to injury, not content to induce infringement, Facebook also sells the artist’s name as an advertising keyword. The subject of the Digital Music News story covered DNCE, so we checked if we could buy DNCE’s name in a boost audience on Facebook. And sure enough:
Not only is Facebook allowing these songs to be used without a license–something that may feel uncomfortable but is nonetheless an issue–they are also ripping off the artist’s own name.
That’s a twofer in the infringement world–infringing the copyright and misappropriating the artist’s name.
What kind of person does this? The kind of person who knows they will never be held to account for their actions.
Ah Bernie, we hardly knew ye.