The Values Gap: CD Baby Shows that the Safe Harbor is a Privilege to be Respected and Not an Alibi to be Cheapened

by Chris Castle, from Artist Rights Watch

It’s hard to believe that after a good ten years of being called out, YouTube still–still–cannot manage to stop neo-Nazi and white supremacist material from getting posted on its network.  We’ve been calling out YouTube on MusicTechPolicy and the Trichordist for these inexcusable failures again and again and again.  And yet they keep recycling the safe harbor as an alibi–and they’re doing it again in Europe on Article 13.

I can understand that YouTube doesn’t want to “censor” users and there may be close cases from time to time.  For example, I could understand why YouTube CEO Susan Wojcicki might not want to take down videos from Seeking Arrangement that encourages young women into a “sugar daddy” relationship to pay for college and health care.

Sure, one of her Google colleagues was murdered by a woman he met through Seeking Arrangement.  Maybe Seeking Arrangement is a close case, particularly for a company that opposed the Stop Enabling Sex Traffickers Act.

But you know what’s not a close case? It’s right there in the title of the song–“Who Likes a N—“.  You would think that one would get picked up in a simple text filter of debased language.  But it wasn’t ten years ago and it still isn’t.  Not a close case.

UPDATE:  Author’s note–this YouTube video has been taken down and the account deleted–AFTER this post.

And then there’s “Stand Up and Be Counted” by the White Riders.  It’s not that hard to figure out by listening to any of the many versions of this song that it’s a recruiting song for the Klu Klux Klan.  And it’s not that YouTube doesn’t know it–this version of the hate song has clearly been filtered by YouTube–oh, sorry.  Not by YouTube, but by the “YouTube community.”  But why is it that a KKK recruiting song doesn’t violate YouTube’s terms of service if it doesn’t shock Susan Wojcicki’s conscience?

White Riders

David Lowery called out YouTube and CD Baby for allowing hate rock to be distributed on their platforms.  Within hours, CD Baby pulled the account.  But not YouTube.

Let’s understand a couple things.  First, this is not hard.  The Anti Defamation League and the Southern Poverty Law Center have actual lists of these bands.  Both MusicTechPolicy and The Trichordist have been hammering this issue for years.  Simple word searches could accomplish a large percentage of the task–the N word, KKK recruiting and images of Adolph Hitler are not close cases.

And let’s understand something else.  When users post movies, television shows and recorded music on YouTube, all of those materials have gone through some kind of legal review for standards and practices.  That doesn’t mean there’s no fair use or that there are no parodies.  It does mean that a human has thought about it because free expression is a judgement call.

Free expression is deserving of human examination.  You cannot create a machine that will do this for you.  You cannot rely on crowd sourcing to stop all uses of these vile terms and images–because in every crowd there’s someone who thinks it’s all just fine.  That’s why they’re called mobs.

YouTube, Facebook and all the Article 13 opponents actually are using a complete spectrum of review.  The problem is that they are cost shifting the human review onto artists and to a lesser extent their users for two reasons.  First and foremost is that they hope not to be caught.  That’s what the safe harbor is really all about.  The value gap is just a part of it–the other part is the values gap.  How do these people sleep at night?

But I firmly believe that the real reason that they shift the human cost onto those who can least afford it is because they’re too cheap to pay for it themselves.  They are willing to take the chance because getting caught so far has been a cost of doing business.

The real cost of their business is the corrosive effect that they have on our discourse, our families and our children.  There has to be a way to make YouTube responsible for their choices–and CD Baby showed this week that it’s not only possible but necessary.

If YouTube and their paid cronies want to try to convince legislators that they deserve special protection, they need to live up to the standard that CD Baby set this week  And they need to do that before they get any further special treatment.

As we’ve said for years, the safe harbor is a privilege not an alibi.

Zoë Keating vs YouTube: The End of an Artist’s Right to Choose Where Their Music Appears on The Internet.

This is a call to action folks.

Many of you may already be aware of this blog post from  Zoë Keating detailing the new terms of the Google/YouTube “Music Key” service.  YouTube’s “communications manager” Matt McLernon has followed the Spotify approach and attacked Zoë Keating’s story as “patently false” although it looks like Google is not exactly backing up their “communications manager“.

I’m pretty sure that Google is not truthful about their conversation with Zoë–you know Google’s lying when their lips are moving–if for no other reason than I believe Zoë’s notes of her conversation with Google are accurate.  Not to mention that the description of the Music Key deal points from Zoë’s notes shows Google tying the YouTube and Music Key deals together in pretty much the same way as the Music Key deal that Google threatened indie labels with last year.

But I’m not sure if the mainstream press understands the consequences of the way Google has tied together the aggressive and anti-competitive terms of service for Music Key with YouTube.

Here’s how Zoë Keating describes these new terms for Music Key:

“1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description [i.e., user generated] will be automatically included in the music service, too [i.e, Google’s Music Key streaming service]. 

2) All songs will be set to “montetize”, meaning there will be ads on them [and the artist has no choice in the matter].

3) I will be required to release new music on Youtube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

5) The contract lasts for 5 years.”

Why is this so terrible?

1)  YouTube allows certain artists and labels with special YouTube accounts to have access to its ContentID system.  ContentID tracks user generated content and allows artists to monetize or block that content in an automated way.  While YouTube creates a whack a mole problem by indiscriminately allowing user generated content to be posted on YouTube, ContentID provides a very imperfect solution to the problem that YouTube created.

This is important because the new terms that are being forced on artists like Zoë ties access to the Content ID system to participation in the new Music Key service.  Artists who refuse to participate in the new Music Key service would lose the ability to “monetize” (i.e. earn revenue) from the use of their songs on YouTube.  Further, artists who reject the Music Key deal would no longer be able to block unauthorized uploads of their music on YouTube–unless the artists track down each upload and send a separate DMCA notice.

What Zoe was told is pretty much exactly what the indie labels were told last year according to Rich Bengloff of A2IM:

Our members have been informed that if they do not sign up to these revised terms, YouTube has given notice to them that YouTube will remove/block our members’ and their artists’ musical repertoire from the entire YouTube service, not just the new audio music streaming service. As YouTube is one of the leading music outlets the effect on our members on the promotion and monetization of their artists will be severe as the premium videos our members create will be blocked and the User Generated Content videos created by consumers using our members artists’ music will cease to be monetized via advertising. Our members will then be forced to engage in the “whack-a-mole” process of getting these non-monetized videos off of YouTube, so as not to detract attention from services that are paying our Independent members, as was not anticipated when Congress enacted the DMCA in 1998.

In other words by saying “no” to Music Key, YouTube will still feature user generated videos on their service AND you won’t get any money.  Think about it. This is like saying “no” to a record deal but results in the label having your songs forever and paying you nothing!   YouTube is EVIL.

2) Because the new terms dictate that ALL your music must be available on YouTube as soon as you release it somewhere else,  there are no more exclusives! Your music cannot appear on the Internet anywhere unless it’s also on YouTube.   Why?  Because YouTube thinks they can use its monopoly position to enforce this tying deal against independent artists.

+++++++++++

On Cracker’s last album Berkeley to Bakersfield, we were able to do interesting cross promotions with our album precisely because we could offer exclusives to various services in different windows.   For instance, we gave Rolling Stone the exclusive rights to stream a song for one week.  In exchange, we were featured on the front page of Rolling Stone Country.  We also cut a deal with Amazon Prime to stream our entire album exclusively for one week in advance of the record release.  In exchange, our album received  favorable promotion and placement  across the entire Amazon service.  Both of these exclusives were key parts of the strategy to promote and sell our new album.   The YouTube Music Key service undermines this exclusivity to block us from exploiting these windows on our next album.

While it’s tempting to see Zoë’s experience as just another way that streaming services are screwing artists, notice that we haven’t even talked about the horrendously low royalty that YouTube pays.  That’s a complaint for another day.

Today, the issue is different.  Google is imposing dangerous anti-competitive moves on artists to screw over the artist’s fans and Google’s competitors.   This move will reduce competition and give artists and consumers less choice.

I believe that this is a dangerous precedent and should be examined by the Federal Trade Commission.  I urge you to write the FTC and ask them to look into this matter.  I understand that you can reach the chair of the FTC at this email address:  hstevenson@ftc.gov

Here’s what I’m writing:

Chairwoman Edith Ramirez and Director Bureau of Competition Deborah L. Feinstein
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580

Dear Chairwoman Ramirez and Director Feinstein:

I’m writing to call your attention to Google’s anticompetitive business practices described by cellist and independent artist Zoë Keating in her viral blog post What Should I Do About Youtube? that has been reported in The Guardian, Die Zeit, Online, Hypebot, Gizmodo, Forbes, Digital Music News and many other news channels.

Google is using its monopoly market power to force independent artists to grant terms to Google’s “Music Key” service by tying the Music Key to its YouTube video service.  As I’m sure you know, a substantial number of videos on YouTube are music videos and YouTube is the largest video search platform in the world.  By forcing terms onto independent artists, I believe that many artists are being duped into agreeing to terms for the Music Key service that grotesquely favor Google without understanding the implications.

I understand that Google is conducting a whisper campaign with journalists in an attempt to discredit Zoë Keating as was documented in Digital Music News, because she merely questioned the fairness of Google’s terms.

As I understand it, the key anticompetitive terms that Google is attempting to tie to its YouTube service are:

1.  Those artists who fail to submit to Google’s oppressive terms for Music Key will have their produced videos removed from YouTube;

2.  If artists agree to submit to the Music Key terms, Google requires that they give up the valuable property right to exclusively window their releases on different platforms because Google requires that all releases be made simultaneously on YouTube and Music Key with any other service;

3.  All of the artist’s catalog must be set to “monetize” which means that Google can sell advertising against all of the videos whether the artist wants it or not;

4.  If the artist does not submit to Google’s Music Key terms, then user generated videos of the artist’s work will be allowed to play on YouTube while the artist’s produced videos will be blocked from YouTube; and

5.  Artists who do not submit to Google’s terms for MusicKey will be prohibited from using YouTube’s ContentID system so will be forced to rely on the hopelessly outdated DMCA notice and takedown system rather than the automated take down available through ContentID.

Independent artists have no way to take on anticompetitive behavior by Google in the courts.  We rely on the government to force companies like Google to play fair.  I urge you to look into this matter immediately as every day more artists are being duped into signing these unfair deals with no more choice than our fans have to negotiate Google’s onerous privacy policy.

Zoë Keating’s experience is emblematic of all of us and I implore you to listen to her voice.

Thank you.

David Lowery

 

 

YouTube Squeeze on Indies Instructive | Illusion Of More

Very insightful and accurate analysis of our digital life and the online ecosystem which devalues the rights of the individual in favor of unprecedented corporate power against citizens.

Tube, yes. You, not so much.

If there has been one consistent theme in everything I’ve written since diving into the morass we call the digital age, it’s that the Internet is not ours despite all appearances to the contrary. Like it or not, all the populist, free-speech rhetoric that’s been spoon-fed to the public by the chief propellorheads of the land is just a gateway drug meant to dull our senses so we don’t notice the monopolistic power grab that’s been taking place. No, the Internet is not ours so much as it belongs to a very small consortium players, most especially Google, which controls nearly all search and nearly all advertising worldwide.

As I argued during the heated squabble over SOPA, these companies don’t really give a damn about free speech or about liberating creators and consumers of content from the media elite gatekeepers; they simply want to be the new media elite, and have the potential to be far more ruthless gatekeepers. Instead of an oligopoly of studios, labels, and publishers we’re gleefully handing over absolute power to a couple of companies, not only calling it progress but even more shockingly calling it democratic.

READ THE FULL STORY AT THE ILLUSION OF MORE:
http://illusionofmore.com/youtube-indies/