Your online video; YouTube’s profit

How your wed­ding shots can make money for cor­po­ra­tions and copy­right hold­ers, but not for you.

Los Angeles Times - - OP-ED - By Stephen Witt Stephen Witt is the au­thor of “How Mu­sic Got Free: The End of an In­dus­try, the Turn of the Cen­tury, and the Pa­tient Zero of Piracy.”

Say it’s your wed­ding day. The cer­e­mony’s over, and you’ve fin­ished with the re­cep­tion din­ner. Un­cle Char­lie’s had too much to drink and is telling your col­lege friends about the time he saw Foghat at the Hol­ly­wood Bowl in 1976. Sud­denly the DJ takes the mike and an­nounces it’s time for your first dance as a cou­ple.

You and your beloved take the floor. The open­ing pi­ano bars to your fa­vorite song be­gin to play — “Up Where We Be­long,” the eter­nal duet from Joe Cocker and Jen­nifer Warnes. (In this sce­nario, you have bad taste.) Your eyes be­gin to mist over as you dance to the song, while, off to the side, your fa­ther records the event for pos­ter­ity on his cell­phone.

A few days later, Dad up­loads the video to YouTube. Be­cause the song is plainly au­di­ble in the back­ground, he adds the stan­dard am­a­teur dis­claimer: “No Copy­right In­fringe­ment In­tended.” You’re a lit­tle wor­ried that Uni­ver­sal Mu­sic Group, which owns the per­for­mance rights to the song, might force Dad to take the video down, but that doesn’t hap­pen. Over the next few weeks, the video gets more than 5,000 views; Un­cle Char­lie gives it the thumbs up, and even Aunt Beatrice leaves a kind com­ment. You aren’t an ex­pert in copy­right law, but it seems Dad’s dis­claimer has worked.

Hardly. What ac­tu­ally hap­pened was this: YouTube’s au­to­matic copy­right de­tec­tion ser­vice im­me­di­ately f lagged the video as po­ten­tially in­fring­ing. The com­pany alerted UMG, of­fer­ing it the op­tion to pull the video or, al­ter­na­tively, to start selling ads against it. UMG chose the lat­ter. YouTube and UMG then split the rev­enue, with a small por­tion go­ing to Cocker’s es­tate.

Ev­ery­one’s happy, right? You and your fam­ily get to re­live your first dance; Google, the owner of YouTube, and Vivendi, the owner of UMG, get paid; and Cocker’s legacy is car­ried for­ward. The only prob­lem is that a large cor­po­rate rights holder has turned one of the most in­ti­mate mo­ments of your life into a profit cen­ter.

Since 2007, YouTube’s Con­tent ID ser­vice has paid more than $1 bil­lion to rights hold­ers from such con­tent, most of it gen­er­ated by or­di­nary users. Of­ten, these au­to­mat­i­cally iden­ti­fied videos in­clude ma­te­rial that nor­mally would be cov­ered un­der the fair use or satire pro­vi­sions of U.S. copy­right law.

Ques­tions of ap­pro­pri­a­tion are al­ways legally thorny; there’s no clear point at which au­dio back­ground noise be­comes part of the public do­main. So YouTube’s con­tent sys­tem plays it safe, au­to­mat­i­cally ren­der­ing judg­ment in fa­vor of large media con­cerns. And once de­ci­sions are made, they are al­most im­pos­si­ble to re­verse.

Take the case of War­ren Lain, a guitar teacher who, in 2011, up­loaded an in­struc­tional video to YouTube fea­tur­ing the chord pro­gres­sion to Ra­dio­head’s “Reckoner.” The record­ing didn’t sound much like the orig­i­nal song, but YouTube’s so­phis­ti­cated robots de­tected a match. YouTube alerted Warner Mu­sic Group, which then forced ads to be sold against the video, with the pro­ceeds go­ing to its pub­lish­ing arm.

Lain ap­pealed the de­ci­sion but was over­ruled with­out ex­pla­na­tion. He wrote nu­mer­ous emails to Warner Mu­sic, and left sev­eral voice mails, but didn’t get a re­sponse. He even wrote a let­ter to Ra­dio­head’s man­age­ment, who told Lain they would look into the is­sue and get back to him. They never did.

“It was a mi­nus­cule amount of rev­enue,” Lain told me, “but it should be cov­ered by fair use in the case of ed­u­ca­tional con­tent.” Lain is of course free to upload his videos else­where — ex­cept that YouTube is 25 times more pop­u­lar than the next largest host­ing site. This mo­nop­oly power makes Google’s robots the de facto judges of con­tem­po­rary In­ter­net copy­right in­fringe­ment. “There’s no court­room,” Lain said. “There’s just the code.”

When rev­enue isn’t mi­nus­cule, copy­right hold­ers take the of­fen­sive. Con­sider the pop­u­lar “Let’s Play” phe­nom­e­non, in which YouTu­bers nar­rate so-called playthroughs of their fa­vorite video games. These videos can be lu­cra­tive, at­tract­ing the at­ten­tion of games man­u­fac­tur­ers.

In 2014, for in­stance, Nintendo filed a copy­right claim over a play­a­long from its pop­u­lar “Zelda” fran­chise. The in­fring­ing media was less than a sec­ond long: a sound ef­fect of Link, the game’s main char­ac­ter, un­sheath­ing his sword. The mer­its of such claims are an un­set­tled area of copy­right law, but in the court of YouTube, the de­ci­sion al­ways goes to the plain­tiff. (The up­loader didn’t bother to con­test the 2014 de­ci­sion.)

For many years, the abil­ity to en­force copy­right on the In­ter­net was nil, a con­se­quence of de­sign choices made in the tech­nol­ogy’s in­fancy that were in­tended to em­power av­er­age users. As a re­sult, al­most all of what we cur­rently con­sider In­ter­net cul­ture re­lies on ap­pro­pri­a­tion to some de­gree. The best Web-based art gen­res — memes, mash-ups, play-alongs, even su­per­cuts — all re­pur­pose copy­righted media in un­in­tended and some­times bril­liant ways. Techno-op­ti­mists praised such de­vel­op­ments; they cel­e­brated this “remix” cul­ture. Some even won­dered whether the con­cept of the copy­right had be­come ob­so­lete.

In 2015, this talk sounds foolish. If the ethos of the pre­vi­ous phase of the In­ter­net was to em­power users, the ethos of the con­tem­po­rary phase is to ex­tract value from them. Be­gin­ning in 2007, with the in­tro­duc­tion of YouTube’s Con­tent ID sys­tem, and pro­ceed­ing slowly over the next few years, the in­ter­ests of rights hold­ers and tech­nol­o­gists be­came aligned be­hind the scenes. Remix cul­ture be­came a profit cen­ter.

Is this progress? Maybe. The au­to­mated gate­keep­ers at Google are safe­guard­ing the abil­ity of artists to earn roy­al­ties; per­haps this will lead to a f lour­ish­ing of orig­i­nal cre­ative work. Then again, many of the copy­right de­ci­sions made by YouTube wouldn’t stand up in a court of law; per­haps Google’s mo­nop­oly is stif ling progress by im­pos­ing un­fair lim­its on the free­dom of speech. It all de­pends on your per­spec­tive.

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