nmpa – Techdirt (original) (raw)

ExTwitter Mostly Wins Silly Music Copyright Lawsuit

from the substantial-non-infringing-uses dept

Last year, we wrote about a very silly lawsuit that some big music publishers had filed against ExTwitter, making some silly claims about how copyright law works. It basically ignored the existence of the DMCA, which was designed to prevent lawsuits like this one, where there is some infringement happening on the platform, but no realistic way for a website to police it, because it can’t know what is and is not infringing. That’s why the DMCA created a whole notice and takedown setup. This lawsuit seemed to basically ignore all that.

That’s part of the reason we thought that ExTwitter’s motion to dismiss was very strong and hoped it would carry the day. It turns out that it mostly did. A part of one claim survives, which ExTwitter should be able to get dismissed at the summary judgment stage if the company didn’t do something very, very stupid (which, these days, is no guarantee). But, on the whole, this is a good ruling for not just ExTwitter, but against dumb copyright lawsuits which have been back on the rise of late.

The ruling is pretty straightforward, dismissing most of the really silly claims from the publishers. The judge understood the basic DMCA issues, noting right up front that the DMCA creates a framework for sites to host user-generated content, without being held liable for infringement by users so long as they comply with the safe harbor requirements in the DMCA. But the music publishers are trying to get around that by claiming that ExTwitter can still be held liable by encouraging infringement.

As with so many copyright cases these days, there are different issues regarding whether or not the defendant engaged in direct infringement, contributory infringement, and/or vicarious infringement (which is often confused with contributory infringement, even by lawyers). Here the judge notes that the music publishers’ arguments on all three types of infringement are pretty flawed.

On direct infringement, it should be a very, very easy call, since it’s not ExTwitter itself that is uploading infringing videos. But the music publishers made use of the giant copyright mess created by the Supreme Court in the Aereo case a decade ago to argue that the Aereo “looks like a duck” test should magically apply here. They argued that ExTwitter was a type of broadcaster “transmitting” the infringing works, similar to Aereo’s rebroadcasting of TV channels. Thankfully, the judge is quick to see that the Aereo case was very, very different:

The plaintiffs argue that their theory of direct infringement falls squarely within Aereo, but it is hard to see how that could be the case. These plaintiffs’ allegations, in contrast with the bilateral transmission relationship at issue in Aereo, require the court to consider the respective roles of three parties: one who sent protected material, one who received it, and a third party, X Corp., that continuously operated the platform through which that infringement—and numerous other, non-infringing communications—occurred. X/Twitter, unlike Aereo, did not “transmit” any of the allegedly infringing material in the manner of a cable provider, because it was not the party that initially diverted that material from the intended channels of distribution. X/Twitter was more like a telephone company—providing the mechanism for communication between independent communicators—than like a cable company that actively selects material to make available. The purpose of the Transmit Clause, the Supreme Court acknowledged, was to “erase[] the . . . line between broadcaster and viewer,” but X/Twitter was neither of those things….

(Before anyone gets too hyped up about the comparison to telecom providers and phrases in here that sound common carrier-like, this is in a wholly different context — just looking at the copyright liability question, not everything else).

The Aereo majority, moreover, specifically acknowledged that “Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies.” Id. at 449. The Court stressed that it did not intend its “limited holding” to “have that effect.” Id. That unintended effect, however, is exactly what the plaintiffs would have this court endorse. There is no plausible case that X/Twitter is the “equivalent” of a cable company in the manner that Aereo—which had no meaningful existence other than as a copyright workaround for television broadcasts—was. The Aereo majority explained that it was not trying to “answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before” it, and that is how the court will construe its holding.

And thus, without anything clear linking ExTwitter to the direct transmission, the direct infringement falls:

As the Supreme Court explained in Aereo, the Transmit Clause was adopted with the specific purpose of ensuring that both the “broadcaster” and the “viewer” of an audiovisual work could, where appropriate, be held liable for direct infringement of the type involved in the tr.ansmission of broadcast television through cable systems. Aereo, 573 U.S. at 441. That purpose is consistent with the conclusion that “transmission” refers to the actions of the sender and/or ultimate recipient of a copyright-protected work—not those of the operators of the channels through which that transmission was accomplished. Claims against such a third party continue to be appropriate for consideration in connection with theories of secondary liability, not direct infringement. The court, accordingly, will dismiss Count I.

Next up is contributory infringement, which is where all the major action in copyright cases these days seems to live. Here, the judge is also not entirely impressed with the music publishers’ arguments, but does allow a small part of the claim to live on.

The concept of contributory infringement is a Supreme Court-invented concept, where they came up with an “inducement” standard found nowhere in copyright law itself, but which they felt was necessary to kill file sharing apps such as Grokster. In short, even if the app isn’t directly infringing, if it’s somehow taking proactive steps to encourage others to infringe, that can be seen as contributory infringement.

The problem here is that the music publishers claim that ExTwitter is engaging in contributory infringement just by existing and allowing people to upload music. If that were true, the entire DMCA notice-and-takedown procedure would be obsolete and dead. The judge is not generally impressed:

The plaintiffs, however, have not identified any caselaw or statutory law suggesting that merely hosting infringing content, until it is subject to a takedown notice, constitutes “materially contributing” to infringement under current law. Nor do the plaintiffs identify any authority that would support an argument that the operator of a social media platform materially contributes to infringement simply because there are some preventive steps that the operator could have taken but did not.

Even more to the point, the judge says setting up generally useful tools that might also be used for infringement is, in no way, indicative of contributory infringement:

Insofar as the plaintiffs are seeking to pursue a broad theory that X Corp. is liable for all of the infringement done on its platform because it has, in effect, created a straightforward, intentional infringement facilitation device, like the peer-to-peer filesharing applications that led to Grokster and similar litigation, the plaintiffs have failed to allege that theory in a manner consistent with either Grokster or the general law of secondary liability. Many of the supposedly problematic practices that the plaintiffs identify are unremarkable features of X/Twitter generally that X Corp. has simply failed to fence off completely from infringers. For example, while the plaintiffs make much of X/Twitter’s monetization of infringing tweets by surrounding them with paid-for promoted material, there is no allegation that those practices were meaningfully different than those X/Twitter applied to monetize popular, but entirely non-infringing, tweets. The plaintiffs complain that it is too easy to upload infringing audiovisual files onto X/Twitter, but, again, the plaintiffs are simply discussing a general feature of the platform. They do not allege that it is easier to post an infringing file than a non-infringing one. Any feature that makes a service easier for all of its users will, by definition, also make the service easier for bad actors. The plaintiffs have not identified any basis for concluding that X Corp. was obligated to make its service worse for everyone, just to punish the people who misuse it.

That final line is a good one.

That said, the judge does not dismiss this entire claim, leaving until later a few specific actions that ExTwitter is accused of, which might cause it problems if the company actually did some stupid stuff. If ExTwitter handled these situations in the way that most thoughtful user-generated content companies would handle it, with competent policies and lawyers, then ExTwitter won’t have a problem. Of course, this is Elon Musk’s company we’re talking about, so there’s no guarantee that they did the right thing. But we’re going to find out.

First up: did ExTwitter allow paying users to infringe more? If so, that could be trouble for the company:

The plaintiffs’ discrete allegations regarding some specific practices, however, much more plausibly fall into the category of materially contributing to infringement. Particularly striking is the allegation that X Corp. enforces its copyright policies less stringently against individuals willing to pay for its “verified” service. If X Corp. truly did allow some users to effectively purchase the right to be able to infringe with less severe consequences, then that was plausibly an instance of “promoting” X/Twitter’s “use to infringe copyright, as shown by . . . affirmative steps taken to foster infringement,” which Grokster acknowledged as a sufficient basis for liability.

This is the kind of thing that a well-run company would have documentation on to show that it’s just not true. Hopefully that’s the case with ExTwitter. Assuming the company still has competent policies on this stuff in place, they should be able to demonstrate that during discovery. If they do, however, treat paying customers differently for handling copyright takedown than… holy shit would that be stupid. I guess we’ll find out.

Second: was the company deliberately delaying responses to DMCA notices? This one’s trickier, because there’s no defined period of time in which a website has to respond, but anything that indicates they slow walked things could be trouble.

Similarly, if X Corp. engaged in egregious delays in responding to valid takedown notices, or outright ignored some notices that were both facially and actually valid, that could support liability. The plaintiffs have not identified any basis for concluding that X Corp. had an obligation to respond to notices of infringement either blindly or instantaneously. In fact, a company that instantly complied with every takedown notice filed, without scrutinizing it at all, would run the risk of enabling abusive, anticompetitive takedown practices—a danger that the DMCA itself acknowledges. See 17 U.S.C. § 512(f) (creating liability for some abusive takedown practices). The fact that some delay may be appropriate, however, is not an unlimited license to drag one’s feet inordinately or forever. If, in fact, X Corp. allowed delays to extend beyond what was reasonably necessary to process takedown requests, in order to make the platform a more attractive tool to infringers, that improper extension of delays would plausibly amount to “purposeful, culpable . . . conduct” intended to enable infringement, capable of supporting secondary liability.

Again, a well-run company would have the documentation necessary to debunk these claims. Does ExTwitter? ¯\_(ツ)_/¯ We’ll find out.

Finally, in the contributory infringement space, there’s the question of whether or not ExTwitter has a functioning repeat infringer policy. Again, if the company does (and it used to…), it should be able to cough up evidence to that effect:

Finally, the plaintiffs have plausibly alleged that X Corp. engaged in contributory infringement by failing to take meaningful steps to address the actions of severe serial infringers. Nothing in the Complaint is sufficient to plausibly suggest that a social media platform like X/Twitter has an obligation to suspend or terminate the account of every person who infringes more than once, or even every user who infringes a number of times. Like delays, however, recidivism can exist in degrees. The plaintiffs have alleged that there was an identifiable subset of X/Twitter users who openly and obviously used the service as a tool for repeatedly posting infringing content, but X Corp. affirmatively declined to take reasonable steps in response to those users’ actions. Again, there is no basis in the law for concluding that the operator of a social media platform will face liability simply because it was less draconian in its enforcement than copyright holders would prefer. If, however, there was a class of X/Twitter users who were brazenly using the platform as an infringement tool, and X Corp. made the decision to unreasonably withhold enforcement of its own policies against those users, with the foreseeable consequence of ongoing infringement, then X Corp. could plausibly be held contributorily liable.

So those bits of possible contributory infringement live on. This means that there will likely be discovery on those issues. If ExTwitter produces evidence that the claims by the publishers are hogwash and they do handle all those things appropriately, the company will likely move for summary judgment and win. If the company under Musk has done something very, very stupid regarding copyright enforcement, then… the company would probably be wise to settle and get the case off the books.

As for the vicarious infringement claim, it’s amazing to me how copyright holders always claim vicarious infringement, and we almost always find out it’s not vicarious infringement. It’s becoming the RICO of secondary infringement claims.

To vicariously infringe, it has to be shown that the website is directly profiting off of the infringement (not just general usage) and, because of that, fails to take steps to prevent it. But you can’t just find some infringement on a platform and say it’s vicarious. However, that’s more or less what the publishers did here. The court is not impressed.

The Supreme Court has recognized, however, that the Copyright Act does not require the seller of a useful, lawful product to scrap its entire business just to spite infringers. The Court faced that very dilemma in connection with the rise of videocassette recorders—that is, VCRs—in 1994, and it held that vicarious liability does not arise merely because a company “sold [a product] with constructive knowledge of the fact that [its] customers may use that [product] to make unauthorized copies of copyrighted material.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. at 439. When the caselaw involving vicarious infringement discusses a defendant’s “right to stop or limit” infringement, then, it means something more than simply the right to refuse to distribute one’s product to possible infringers.

The court notes that most vicarious infringement situations involve cases where an employee or an “agent” of the company is engaging in infringement to the benefit of the company. And there’s no evidence of that here. Indeed, the court basically says that the publishers are sort of pleading contributory infringement factors and claiming they’re also vicarious. But they’re not. So those claims are tossed as well:

X Corp. undoubtedly had some power over X/Twitter’s users—the way that a company that provides a valued service always has power over the customers who rely on it—but that does not turn customers into even loose equivalents of agents or subordinates. See Music Force, LLC v. Sony Music Holdings Inc., No. CV 19-6430 FMO (RAOx), 2020 WL 5733258, at *3 (C.D. Cal. Aug. 12, 2020) (“[T]he right to terminate services or a contract with an infringer does not amount ‘to a right and ability to supervise the infringing conduct.’”) (quoting Routt v. Amazon.com, Inc., 584 F. App’x 713, 715 (9th Cir. 2014)). As with the issue of direct infringement, the plaintiffs are trying to force X Corp’s actions into a category not intended to account for the actual character of the relationships at issue, when there is a tool—the doctrine of contributory infringement— uniquely suited to the job.

And that’s it. Basically all three theories by the publishers are flawed. A few small parts of the contributory claims live on, but should be easily disposed of as long as Elon didn’t do something stupid.

Filed Under: contributory infringement, copyright, direct infringement, dmca, music publishers, vicarious infringement
Companies: concord music, nmpa, twitter, x

ExTwitter Rightly Tells Court That Music Publishers’ Lawsuit Is Complete Nonsense And Should Be Tossed Out

from the good-lawyering-for-once dept

Back in June, we wrote about a ridiculously weak lawsuit from the big music publishers against exTwitter, claiming that the platform, mostly known for text, and which barely has any reasonable system for posting or listening to music, was a music piracy haven.

As we noted, the publishers’ lawsuit seemed misguided in multiple ways, beyond just the lack of facilities on exTwitter for music, but also because the entire lawsuit seems to ignore the nature of the DMCA or any number of previous cases that says that online platforms need to have specific, actual knowledge of infringing works, rather than generalized knowledge that “infringement is happening on my platform.”

exTwitter has now hit back in court (first reported by Torrentfreak), and is asking for the judge to toss out the lawsuit. My initial fear with this lawsuit is that exTwitter would blow it by hiring bad lawyers who don’t understand the nuances here, but at least that doesn’t seem to be the case so far. Elon appears to have turned it over to his favorite lawyer, Alex Spiro, and his colleagues at Quinn Emanuel. While I wouldn’t trust Spiro for any of this, QE actually does have some very strong lawyers on copyright who have won some big cases, so there’s some serious lawyering going on.

The preliminary statement lays out the details of what a joke this case is:

Plaintiffs fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct. The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant—not from the passive, automated operations of a website. The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.

The contributory infringement claim is similarly defective. The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses—as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005) (“Grokster”). In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works. To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar facts, this pleading defect requires dismissal of the contributory liability claim. See Eight Mile Style, LLC v. Spotify USA Inc., 535 F. Supp. 3d 738, 746 (M.D. Tenn. 2021).

Finally, Plaintiffs’ claim for vicarious liability fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an “obvious and direct” financial benefit to X, or that X had the practical ability to supervise the alleged infringement. As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.

There’s a ridiculous amount of caselaw on exTwitter’s side on this one.

I still worry about how Elon, as a wild card, will tweet something ridiculous like “hey everyone, let’s start posting infringing songs here for the lulz” or whatever. But, barring that, exTwitter has a strong case here, and the publishers look even greedier than they normally do in filing this case.

Twitter is not a music platform, and even if Musk is gradually hoping to turn the platform into one, that should be dealt with when those plans become clear, rather than the flimsy theories filed in this lawsuit, which would get laughed out of any law school copyright law discussion.

Filed Under: copyright, elon musk, music, publishing
Companies: concord music group, nmpa, twitter, x

Music Publishers File (Somewhat Weak) Copyright Lawsuit Against Twitter

from the it's-always-the-dmca dept

To be honest, I’m somewhat amazed that more copyright lawsuits haven’t been filed against Twitter yet. There have been multiple reports of how the company’s DMCA takedown response systems have been broken/ignored since Musk took over. Without looking for it, I’ve seen full length high def movies show up in my Twitter feed (including movies still in theaters).

Still, it’s a bit surprising that the first such lawsuit is not from a Hollywood studio, but rather a big giant list of music publishers. And I’m pretty sure that Twitter has a strong case, if Elon bothers to hire competent copyright attorneys.

The backstory here is that music publishers (who are different than the record labels, even if some are connected to labels) have been demanding that Twitter license content for years. And, for years, Twitter correctly pointed out that it abides by the DMCA, and takes down copyright-infringing works when it receives a proper takedown notice. This is exactly what the law allows them to do, and it’s not as if Twitter is where people go to listen to music (and what music does get posted is generally hosted elsewhere and posted in a promotional manner). So, really, the idea that Twitter had to get a license from the publishers was always a stretch.

Still, almost immediately after Elon announced his bid for Twitter, the music publishers started agitating for him to license compositions. But, this is Elon Musk we’re talking about. The man won’t even pay his rent, or his cloud computing bills. Did anyone actually think he would pay for publisher licenses he doesn’t even need? So, it was little surprise when there were reports earlier this year that the talks had “stalled.”

And now there’s a lawsuit. But it doesn’t seem like a particularly strong one:

This is a civil action seeking damages and injunctive relief for Twitter’s willful copyright infringement. Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law. While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators.

I mean, first of all… what? I’ve been an avid Twitter users from 2008 through 2022 and I honestly can’t recall ever encountering music in any significant way, or if I did, it was links to licensed sources such as Spotify, Apple Music, YouTube or whatever.

The only reason to do such a license is if you’re actually hosting music (and even then the DMCA should protect you, but most sites choose to get a license mainly to get the industry to stop constantly screaming at them and so that they don’t have to constantly play DMCA takedown whac-a-mole).

And, some of this is just nonsense:

Twitter knows perfectly well that neither it nor users of the Twitter platform have secured licenses for the rampant use of music being made on its platform as complained of herein. Nonetheless, in connection with its highly interactive platform, Twitter consistently and knowingly hosts and streams infringing copies of musical compositions, including ones uploaded by or streamed to Tennessee residents and including specific infringing material that Twitter knows is infringing. Twitter also routinely continues to provide specific known repeat infringers with use of the Twitter platform, which they use for more infringement.

The standard here has to be specific, actual knowledge of infringing works, not general knowledge that some people on the platform sometimes post infringing works. And while the paragraph above alleges “specific infringing material that Twitter knows is infringing,” it’s not actually that simple. That’s the same sort of argument that Viacom made against YouTube and failed with. In that case, Viacom also insisted that YouTube had to know these works were infringing and the court said that’s not how it works. And it’s even more limited in this case because the publishers say that Twitter “knows” that its “users” have not secured licenses, but does not suggest how they know this at all. It’s entirely possible that some of the users have, in fact, secured licenses. Or, as noted, that they’re just posting videos from elsewhere that is licensed. The publishers know this, so this is just misleading nonsense.

Twitter profits handsomely from its infringement of Publishers’ repertoires of musical compositions. The audio and audio-visual recordings embodying those compositions attract and retain users (both account holders and visitors) and drive engagement, thereby furthering Twitter’s lucrative advertising business and other revenue streams.

I doubt this very much. First, again, who goes to Twitter for the music? Second, (also, again) the vast majority of music is linked to on other sites, not hosted by Twitter. Yes, Twitter hosts some video, and yes, Elon expanded how much can be posted, but it’s still a stretch to argue that Twitter is “profiting” from music on its platform.

This is just typical National Music Publishers Association (NMPA) nonsense, in which they falsely insist that no one does anything for any reason except to seek out their music, and that they should be paid for every listen.

Still, there are some things in here that suggest that Musk, in ways that only an incompetent Musk would do, has made his own situation worse. The key bits:

Twitter has repeatedly failed to take the most basic step of expeditiously removing, or disabling access to, the infringing material identified by the infringement notices. Twitter has also continued to assist known repeat infringers with their infringement. Those repeat offenders do not face a realistic threat of Twitter terminating their accounts and thus the cycle of infringement continues across the Twitter platform.

If that’s actually what’s happening, then that would be problematic. The complaint does point to an example of “a known repeat infringer” which at least raises some questions:

The screenshot below illustrates Twitter’s monetization of infringing content. This infringing tweet is from a known repeat infringer who has been the subject of at least nine infringement notices to Twitter, identifying at least fourteen infringing tweets, which contained unauthorized copies of Publishers’ musical compositions. Directly below the infringing tweet is a paid “Promoted” tweet selected by Twitter. To the right of the infringing tweet is a paid “Promoted” account recommended by Twitter. Twitter’s account recommendations also include another known repeat infringer, Twitter Account A, identified in paragraph 166 below.

I’m at least a little confused by this. From what I see there, it’s not at all clear that the original tweet is hosted audio. It’s possible, but normally when there’s a video player it shows with the indicators of a video player. And, honestly, the fact that there are other promoted tweets or recommendations is mostly meaningless for the copyright issues at play.

As for the repeat infringer question, the DMCA requires that companies have a “reasonably implemented” repeat infringer policy, but does not specify exactly how it works, so just claiming that there are repeat infringers on the site, without more info, does not prove that Twitter would be liable for infringement (it could be, I’m just noting that the complaint is pretty weak on this point). The legal battles around this are always about whether or not a particular policy is reasonably implemented, and without more info it’s difficult to know if Twitter’s would be.

Later in the lawsuit there are lots of complaints about how long it takes Twitter to review DMCA takedowns, which might be indicative of a real problem… but might not be:

The precise extent of Twitter’s lengthy delays will be the subject of discovery and analysis, including through a review of Twitter’s records. In the meantime, by way of an example, the musical composition “What a Wonderful World,” written by Bob Thiele and George David Weiss and performed by Louis Armstrong, is a timeless classic, chosen by Rolling Stone in September 2021 as one of the top 200 songs of all time. Unauthorized audio and audio-visual recordings that embody “What a Wonderful World” are rampant on the Twitter platform, and Twitter has failed repeatedly to take them down in an expeditious manner. Across all the NMPA Notices sent to Twitter that identified the musical composition for “What a Wonderful World” by name, along with precise URLs for the tweets containing the infringing uses of that composition, Twitter failed to take down at least 240 infringing tweets incorporating “What a Wonderful World” within 14 days after the NMPA Notice was sent. Even more troubling, over 120 of those tweets were still available at least a month after the associated NMPA notice was sent to Twitter, and more than two dozen tweets were still available on Twitter over two months after NMPA sent a notice identifying them as infringing.

Seems like an odd choice to use, as an example, a song that is literally 56 years old, which at the time it was published had a maximum copyright term of 56 years? Yes, the song is still under copyright thanks to endless copyright term extensions, but… still. You’d think they’d pick another song.

Also, the lawsuit misrepresents Twitter’s marketing claims about Twitter and music, which tend to be about communities of fans, not posting actual music (again, that’s not really a Twitter thing).

Twitter has been outspoken about how important music is to Twitter and users of its platform. In its marketing, blogs, or tweets, Twitter stated:

a. “[M]usic is the largest community” on Twitter’s platform, where “people are more likely to follow a music-related account than any other type of account on Twitter.”

b. The Twitter platform is “the ultimate connection to the music world for fans and brands.”

c. “Every day, more than 30 million tweets are published about music around the world . . . [which is] more than 20,000 every minute.”

Twitter even has its own “@TwitterMusic” account on its platform dedicated to top music trends, which has a massive following of 11.5 million users

I mean, literally none of that has anything to do with infringing content. It’s mostly about music fans and connecting with artists. Not listening to music on the platform. It’s just designed to sound bad, despite being wholly unrelated to the actual copyright question.

Now, there are some things that Elon has done that may cause him trouble in court. Recently departed trust & safety boss Ella Irwin (stupidly) announced that the company wouldn’t suspend users unless “it is clear the user knew the content was illegal.”

While that may seem commendable in some ways, it might conflict with the DMCA’s requirements regarding repeat infringer policies. At least, the NMPA sure claims it does:

Twitter has told users of its platform that “[w]e don’t suspend users for posting reported content unless it is clear that the user knew the content was illegal.” But Twitter’s practice is unreasonable and contrary to law. Infringement occurs as a matter of law. Direct infringement is a strict liability offense, without any requirement that the infringer know the content they post is illegal.

Except… that’s not entirely accurate by the NMPA either. While the courts have definitely moved in that direction, some still do recognize the concept of innocent infringement (and, frankly, copyright law would be a lot more reasonable if the courts went back to understanding this).

There are other Elon decisions that the complaint calls out, but some are silly and have nothing to do with the copyright questions:

Instead of grounding decisions on sound policy development and reasonable implementation, Twitter has outsourced trust and safety decisions to Twitter polls, i.e., votes among users of the Twitter platform, through a feature on the platform used for polling.

But… there is another thing the lawsuit calls out which MANY copyright lawyers freaked out about last month, when a Twitter user appeared to complain that they were being unfairly hit with copyright claims and Elon told the user to try “turning on subscriptions.”

I saw multiple copyright lawyers freak out about this and try to warn Musk that this tweet would show up in copyright lawsuits. At the time, I looked into the issue and… while it looks bad, it’s not as bad as it seems. The “Figen” account does not appear to actually be infringing on copyrights. It actually is linking to the original uploads by the original users (those might be infringing, but most did appear to be from the original creator of the work). This is a confusing bit of how Twitter works, when you can “repost” someone else’s video, but you’re really just linking to their upload.

Still, this incident shows up in the lawsuit (somewhat obliquely):

By way of another example, a user tweeted that Twitter should not suspend accounts for receiving multiple copyright notices but rather should only disable the copyrighted videos. That user asserted that the user does not earn money from the videos they share, or understand that they are copyrighted, and that copyright owners should ask Twitter users to remove the videos rather than submit notices to Twitter. Twitter replied publicly to this user, but without asking the user not to infringe, without referring the user to Twitter’s Copyright policy, and without telling the user that copyright infringement is unlawful regardless of whether the user makes money from it or realizes that a particular video is infringing. Instead, Twitter suggested that the user “consider turning on subscriptions”—a feature of Twitter Blue that garners revenue for Twitter, enables the user to receive payments from other users of the Twitter platform, and, because the infringing tweets are behind a paywall, makes it more difficult for copyright owners to find.

So, this one goes both ways. If you understand that Figen wasn’t actually infringing, then Elon’s statement isn’t so bad. But it’s not even clear that Elon realized this user wasn’t actually infringing. And if he did believe the account was infringing then… yeah… that’s bad. But, also, it’s not at all a surprise this showed up in a lawsuit.

And then there’s this:

I mean, this is another case where Elon is correct, but that plays badly if you’re in a lawsuit for ignoring DMCA takedowns, and of course the NMPA calls it out.

Twitter’s most senior executive has previously described the Digital Millennium Copyright Act (“DMCA”)—a statute that, among other things, provides for notice and takedown of infringing copyrighted material—as a “plague on humanity.”… This statement and others like it exert pressure on Twitter employees, including those in its trust and safety team, on issues relating to copyright and infringement.

So, anyway, this is not a particularly strong lawsuit, but it’s not a joke either. It’s got many aspects where Elon and his inability to shut the fuck up clearly made things worse. But it does seem like the kind of copyright lawsuit that Twitter could win if it had competent copyright litigators to handle it.

Which means, the question is: can Elon actually hire a competent copyright litigator these days?

Filed Under: copyright, dmca, dmca 512, ella irwin, elon musk, licensing, publishers, repeat infringer policy
Companies: concord music, nmpa, twitter

Music Publishers Sue Roblox In Full Frontal Assault On The DMCA

from the here's-a-big-one dept

A huge and potentially important copyright lawsuit was filed this week by basically all of the big music publishers against the immensely popular kids’ gaming platform Roblox. Although the publishers trade association, the NMPA, put out a press release claiming the lawsuit, it doesn’t appear that NMPA is actually a party. The lawsuit is, in many ways, yet another full frontal assault on the DMCA’s safe harbors by the legacy music industry. There’s a lot in this lawsuit and no single article is going to cover it all, but we’ll hit on a few high points.

First, this may seem like a minor point, but I do wonder if it will become important: buried in the massive filing, the publishers mention that Roblox did not have a registered DMCA agent. That seems absolutely shocking, and potentially an astoundingly stupid oversight by Roblox. And there’s at least some evidence that it’s true. Looking now, Roblox does have a registration, but it looks like it was made on… June 9, the day the lawsuit was filed.

Wow. Now, that may seem embarrassing, but it might actually be more embarrassing for the Copyright Office and raise a significant and important legal question. Because it appears that Roblox did at one time have a DMCA agent registration but, as you may recall, back in 2016, the Copyright Office unilaterally decided to throw out all of those registrations and force everyone to renew (and then to renew again every three years through a convoluted and broken process).

There’s an argument to be made that the Copyright Office can’t actually do this. The law itself just says you need to provide the Copyright Office with the information, not that it needs to be renewed. The Copyright Office just made up that part. Perhaps we finally have a test case on our hands to see whether or not the Copyright Office fucked up in dumping everyone’s registration.

Still, that’s a minor point in the larger lawsuit. The publishers throw a lot of theories against the wall, hoping some will stick. It seems like most should be rejected under the DMCA’s safe harbors, because it truly is user generated content, even if the lawsuit tries a variety of approaches to get around that. Part of the lawsuit argues contributory and vicarious copyright infringement, more or less pulling the “inducement” theory from the Grokster ruling, which basically says that if you as a company encourage your users to infringe, you could still be liable (this is, notably, nowhere in the actual law — it’s just what the Supreme Court decided).

But to get there, the lawyers for the music publishers seem to want to take a Roblox executive’s comments completely out of context, in a somewhat astounding manner. The “proof” that Roblox is encouraging people to infringe is here:

Roblox is well aware that its platform is built and thrives on the availability of copyrighted music. As Jon Vlassopulos, Roblox?s global head of music, publicly stated just last year: ?We want developers to have great music to build games. We want the music to be, not production music, but really great [commercial] music.? (Alteration in original). To that end, Roblox actively encourages its users to upload audio files containing copyrighted music and incorporate them into game content on the Roblox platform. Roblox advertises the importance of music in games and makes it easy for users to upload, share, and stream full-length songs.

But… if you read the article that they’re using for that Vlassopulos quote, it’s not directed at developers and users of their platform. It’s targeted at musicians and the music industry. The whole point of the quote is to let musicians and the industry know that Roblox is open to licensing deals. It’s pretty obnoxious to try to spin that as encouraging people to infringe when, in context, it sure looks like the exact opposite. I mean, literally the next sentence (which doesn’t make it into the lawsuit) is about how they’re “testing the waters” by making a deal with a small indie label to make all of its music available on Roblox.

So it seems to be Roblox saying the exact opposite of what the publishers are claiming. That’s… kinda fucked up.

The lawsuit also tries to spin the impossible task of trying to moderate as proof that any failures in moderation are deliberate.

There is no question that Roblox has the right and ability to stop or limit the infringement on its platform. But Roblox refuses to do so, so that it can continue to reap huge profits from the availability of unlicensed music. While Roblox touts itself as a platform for ?user-generated? content, in reality, it is Roblox?not users?that consciously selects what content appears on its platform. Roblox is highly selective about what content it publishes, employing over a thousand human moderators to extensively pre-screen and review each and every audio file uploaded. Roblox?s intimate review process includes review of every piece of copyrighted music, generally identified by title and artist?to ensure that it meets Roblox?s stringent and detailed content guidelines and community rules. This process ensures that Roblox plays an integral role in monitoring and regulating the online behavior of its young users.

Roblox thus unquestionably exercises substantial influence over its users and the content on its platform, ostensibly in the name of ?safety.? Yet Roblox allows a prodigious level of infringing material through its gates, purposely turning a blind eye for the sake of profits. Rather than take responsibility, Roblox absurdly attempts to pass the obligation to its users?many of whom are young children?to represent to Roblox that they own the copyrights to the works they have uploaded.

Coincidentally, just last week we published our content moderation case study on Roblox, focused on how it tries to stop “adult” content on the platform. We noted that the company is very aggressive and hands-on with its moderation efforts but (importantly) it still makes mistakes, because every content moderation system at scale will make mistakes.

So just because Roblox is aggressive in its moderation, and even if it says it reviews everything, that doesn’t mean that it “refuses” to stop infringement. It just means it doesn’t catch it all. Indeed, the company has said in the past that it uses an automated third party monitoring tool to try to catch unauthorized songs (though, notably, this lawsuit is about the publishing rights, not the recording rights, so arguably a monitoring tool might catch some sound recordings while missing other songs that implicate songwriters/publishers — but that’s getting super deep in the weeds).

Indeed, the impossibility of catching everything — while still encouraging websites to try — is why we want things like Section 512 of the DMCA or Section 230 of the CDA. If you suddenly make websites liable for any mistakes they let through, then you create a huge problem. And claiming that their aggressive moderation implicates them even more only encourages sites to do less moderation in the long run.

But, the publishers don’t care about that. Their end goal is clear: as in the EU, they want to force every website to have to buy a blanket license for music. They basically want to do away with the DMCA altogether, then just sit back and collect payments. They want to change the internet almost entirely from a tool for end users to a cash register for music publishers.

There are some other oddities in the lawsuit. It repeatedly tries to claim that Roblox is liable for direct infringement itself, but that theory seems like a stretch. Even the filings admit that the music is all uploaded by users:

Despite Roblox?s written policies, users regularly upload files containing copyrighted music. The act of ?uploading? a file to Roblox involves the user making a copy of the file and distributing it to Roblox, where it is then hosted on Roblox?s servers.

To upload an audio file, a user simply opens the Roblox Studio and clicks on a tab marked ?Audio,? which then prompts the user to choose a file on their local hard drive, in either .mp3 or .ogg format to be copied and distributed to Roblox?s servers.

It tries to build out the inducement theory by saying that because Roblox encourages developers to use music in their games, and this is the same as encouraging infringement, but that’s nonsense. Nothing in what Roblox says encourages infringement. They’re just saying that sound and music can enhance a game. Which is clearly true.

Roblox makes the process of uploading infringing music extremely easy for users. Roblox even published an article designed to encourage developers to add music to their games, which explains: ?While building a game, it?s easy to overlook the importance of sounds and music.? (Emphasis added).4 That page gives users step-by-step instructions on how to copy and distribute their music files to the Roblox platform.

So what? That’s not telling users to infringe. If anything, it’s saying “find some music you’re able to add to this legally.” You’d think that publishers would be happy about that, as it opens up a new line of business where they could license their music, which is what the Roblox exec was talking about at the beginning. But leave it to the greedy publishers to not want to do the hard work here, and instead try to force a big company into a big payment.

Roblox has already put out a statement saying (not surprisingly) that it’s “surprised and disappointed” by the lawsuit. It seems likely that it will mount an aggressive defense, and it could be yet another important case in seeing whether or not the legacy music industry is able to chip away at another important aspect of the DMCA, and to force all websites that host third party content to buy blanket licenses.

?As a platform powered by a community of creators, we are passionate about protecting intellectual property rights ? from independent artists and songwriters, to music labels and publishers ? and require all Roblox community members to abide by our Community Rules,? said the statement.

?We do not tolerate copyright infringement, which is why we use industry-leading, advanced filtering technology to detect and prohibit unauthorised recordings. We expeditiously respond to any valid Digital Millennium Copyright Act (DMCA) request by removing any infringing content and, in accordance with our stringent repeat infringer policy, taking action against anyone violating our rules.?

?We are surprised and disappointed by this lawsuit which represents a fundamental misunderstanding of how the Roblox platform operates, and will defend Roblox vigorously as we work to achieve a fair resolution,? continued Roblox?s statement.

Of course, this is par for the course for the legacy industry — especially the publishers as lead by the NMPA’s David Israelite. They wait for various internet services to get popular, and then rather than figuring out how that helps them, they sue. It’s how they constantly kill the golden goose. They’ve done it with various internet music services, music games, and more. They’re currently trying to do it with Twitch and now Roblox as well. They overvalue the music component, and choke off the long term business prospects for these platforms, many of which have music as an ancillary add-on.

It’s silly, short-sighted, and anti-culture. In other words, it’s the legacy music industry’s usual playbook.

Filed Under: copyright, copyright office, dmca, dmca agent, inducement, publishers, registration, safe harbors
Companies: nmpa, roblox

Legacy Music Industry Shouldn't Get To Watch Over The Royalties Of Independent Songwriters

from the we've-done-this-before dept

Last year, a very strange thing happened in the copyright space: a pretty major update to copyright law was passed and it wasn’t that controversial. Leading up to that passage there had been plenty of concerns, but a compromise was worked out last fall that was… actually pretty good for everyone involved. It wasn’t how any sane society would craft copyright law from scratch, but the key aspects of the Music Modernization Act were to attempt to fix a lot of other really broken stuff. At the time we focused on the fact that it would help expedite moving some very old music into the public domain, which was great. But the much bigger deal to the music world was a reform of the mechanical licensing process for songwriters.

As we discussed in walking through one of a few lawsuits that had been filed against music streaming platforms over mechanical licensing, it was such a complex area of copyright law that basically no one fully understood it. Every single copyright lawyer I spoke to in trying to understand it would give me a totally different answer. So part of the Music Modernization Act was to clear up the questions around mechanical licensing and internet services, making it easier for songwriters to actually get royalties they’re owed, without the convoluted process that used to be in place.

As with all things, the devil is very much in the details, and suddenly things are looking a bit problematic. The law directs the Register of Copyrights to designate an entity to become the new “mechanical license collective” (MLC), effectively creating a brand new collection society for these mechanical royalties. The Copyright Office has an open comment period on this, which is about to end, and musician Zoe Keating has noticed that the entire process appears to be rigged to (of course) help divert money to the big music publishers and away from independent artists. She’s written a very detailed, but well worth reading, description of the problematic aspect of what’s happening, and is asking the Copyright Office to extend the comment period as more songwriters — especially independent ones, learn what’s going on and can weigh in.

The key part in all of this is that the organization that represents the biggest music publishers, the National Music Publishers’ Association (NMPA) is angling to run this new MLC. Indeed, it appears to be acting as if it already is in charge of it:

The NMPA very cleverly named their proposed group the ?MLC? and continually refer to it as the ?industry consensus? group. David Israelite in his sworn testimony to congress said the NMPA ?is the trade association representing all American music publishers and their songwriting partners.? That?s not quite true. The NMPA does not represent songwriters like me.

Again, there is so much confusion on the street about mechanical royalties. I?ve been talking to all the songwriters I can the last couple weeks. So many are confused about what these royalties are and how to collect them. Some songwriters have tried to educate themselves and have read up about it only then to be confused by the NMPA?s naming confusion and as a result, think that the NMPA?s MLC is already The MLC or that it is the same as the AMLC or that everyone is on the same page. In short, there is confusion. That confusion benefits the NMPA.

A big part of the role of whoever becomes the MLC (whether it’s the NMPA’s version or another one) is, of course, to get the money they’ve collected to the artists who deserve it. And therein lies a bit of a concern:

There is a pot of unclaimed royalties that have already been paid by music services that is estimated to be between 1.5and1.5 and 1.5and2.5 billion. A major task of the new MLC will be to apply some clever technology to match that money to its rightful owners. I?ve already explained the difficulty of collecting when you?re unrepresented. Without question, a large portion of these unclaimed royalties belong to self-published songwriters.

The new law says that after three years the board of the MLC can decide to liquidate that pot of unclaimed royalties and distribute it to themselves by market share. This strikes me as a huge conflict of interest. Does the NMPA even have any incentive to do what it takes to match the royalties to whomever earned them? Are the unclaimed royalties of unrepresented songwriters just going to keep getting distributed to Sony, Universal etc now and forever going forward?

If you’ve been reading Techdirt for a really long time, this may sound familiar. Way back in 2004, the law over a different kind of royalty — for interactive streams — that was collected by a new group (SoundExchange) spun off from the organization representing the big record labels (the RIAA) said that it, too, could keep the money for itself, if the organization couldn’t find artists. And, magically, SoundExchange had “trouble” finding lots of artists, including some really big names. By 2009, we noted that SoundExchange was hanging on to over $100 million that belonged to artists. Public outcry over this did eventually result in SoundExchange promising not to just keep the money for itself, and to its credit, after a lot of work, the organization did become much better at finding artists.

But it boggles the mind that having already gone through that experience 15 or so years ago, the Copyright Office would set up a nearly identical boondoggle. And, as Keating notes, the NMPA doesn’t want much oversight over its proposed organization (unlike the competing proposal, which Keating is supporting):

If the NMPA is awarded this contract by the Copyright Office they will control billions of dollars in royalties without oversight (unlike the AMLC, the NMPA proposal says the Copyright Office will not oversee their entity) and with a conflict of interest that gives them incentive to liquidate and distribute unclaimed royalties to their members rather than to the songwriters who actually earned them.

This is increasingly important. As we’ve continued to show in our latest Sky is Rising report, the number of musicians and music being created continues to skyrocket. And a whole lot of that is coming from independent songwriters and musicians. The idea that the legacy industry should be able to collect and be in charge of distributing many millions of dollars owed to those independents seems problematic in many ways — and it’s not helped by the presumptuous attitude of the NMPA in pushing its own organization as the solution.

Keating is asking the Copyright Office to, at the very least, extend the deadline for comments beyond April 22nd, and hopefully the Copyright Office will listen.

The education issues here are huge. All the songwriters, large and small, that I?ve talked to have asked why they haven?t heard about any of this controversy when so much money is at stake. ?If it was a big deal, why haven?t I heard about it??. I can?t believe the deadline is as soon as April 22. We need more time to educate songwriters on this issue so they can choose which entity will administer their mechanical royalties.

I call on the Registrar of Copyrights to extend the comment period.

Meanwhile, I call on all songwriters to submit comments to the Registrar of Copyrights.

As Keating points out, one of the biggest challenges she’s always had in making a full-time living as a successful independent musician is not piracy, but rather the legacy industry getting in the way and keeping money it owes her.

Ironically, a lot of the obstacles in the early stages of my career came not from file-sharing/piracy sites but from the established music industry and their gate-keeping. I understand that the NMPA is trying to protect its members from an industry that most often tries to siphon off as much of their member?s earnings as possible, but they should not protect themselves at the expense of unrepresented songwriters. Lets not bake the mistakes of the past into future systems.

Filed Under: independent song writers, mechanical royalties, mechanicals, mlc, music licensing, music modernization act, songwriters, zoe keating
Companies: nmpa

Legacy Recording Industry To Trump: Please Tell Tech Companies To Nerd Harder To Censor The Internet

from the feeding-right-into-the-program dept

Last week, we wrote about the ridiculous suggestion from the former Newspaper Association of America (now called the News Media Alliance) that President Donald Trump should scale back fair use because newspapers still don’t like Google. As we noted, at a time when Trump has been strongly endorsing censoring newspapers, for those very newspapers to tell Trump to undermine a key cog in protecting free speech was absolutely ridiculous.

And, of course, now we can add the legacy recording industry to this same “shoot foot” brigade. Upon hearing about Trump’s meeting with the heads of a bunch of top tech companies, the RIAA and a bunch of related recording industry associations (including ASCAP, BMI, A2IM, NMPA, SoundExchange and more… ) have sent a letter to Trump (found via Variety), asking him to force the internet companies to nerd harder to find better ways to censor the internet. This is fairly incredible, seeing as the traditional recording industry wasn’t exactly a major Trump supporter. For them to now reach out to Trump and urge him to increase censorship of the internet is fairly astounding and sickening. Basically, to the RIAA and friends, hatred of Google and the internet is more important than concepts like free expression or holding our elected officials accountable.

Of course, the legacy recording industry doesn’t come out and directly say “censor the internet,” but that’s exactly what they’re asking for here (though watch the blog posts from defenders of the industry howl about me making this intent obvious):

Surely the world?s most sophisticated technology corporations can do better ? by helping to prevent illegal access and paying fair market value for music with prices set by or based on the free market.

Strong protection for intellectual property rights will assure growth in both creativity and technology, benefiting the American economy as a whole.

We hope you will lead the effort to assure American creativity is encouraged, invested in, protected and fairly compensated in a manner that carries out the exclusive rights guaranteed in the Constitution to those who, with the genius of their mind, form the cultural identity of our great nation.

The call for censorship is in “preventing access” which means blocking what you can do online. The hilarious part is the “prices set based on the free market” because that’s exactly what the industry is protesting. The whole “value gap” bullshit is basically the industry saying “we do not like what price the free market is setting, and therefore we need the government to artificially inflate prices through monopolies.

Just to be clear, if you’re whining about not getting “fair compensation” you’re clearly saying “I’m upset about the price the free market has set.”

But the bigger issue here is the censorship piece. I shouldn’t have to detail here how many times we’ve shown that copyright is abused for censorship purposes (including by governments). The call to hold platforms more accountable and putting the onus on them to “nerd harder” is a call to ramp up tools for censorship-via-copyright. This is pretty ridiculous — and one hopes that musicians who have spoken out against Trump will also speak out against this demand to give him and his friends more power to censor parts of the internet.

Filed Under: copyright, donald trump, nerd harder, recording industry, value gap
Companies: a2im, ascap, bmi, google, nmpa, riaa, soundexchange

RIAA: How Dare The Internet Use The DMCA That We Wrote To Build Useful Services!

from the calm-down,-sparky dept

As we’ve mentioned, today is the day that comments are due to the Copyright Office on the effectiveness (or not) of Section 512 of the DMCA, better known as the “notice and takedown” safe harbor provisions. We’ll be posting the details of our own filing at some point (possibly not until Monday as we’re still finalizing a few things), but some of the other filings are starting to filter out, including a fairly astounding 97-page document from a bunch of legacy music industry organizations (about half of which is the actual filing, with the rest being appendices), including the RIAA, ASCAP, AFM, NMPA, SoundExchange and more. It’s basically every organization that represents the way the industry used to work — and the document reads like an angry polemic against the internet. It would have been much shorter, if they just wrote “our business used to be much better when we had more control and less competition — and we never bothered to adapt, so fuck Google and all those internet companies — and let’s change the DMCA to punish them and magically bring back the good old days.”

Also, the filing seems to leave out the fairly important point that it was these groups that basically wrote the DMCA that they’re now whining about. Actually, let’s get even more specific. The comment here was co-written by lawyer Steve Metalitz — who has a way of showing up whenever some legacy industry is pushing to make copyright laws much, much worse. Metalitz’s own bio emphasizes the fact that, as a lobbyist, he was “instrumental in the drafting” of the DMCA:

So it seems rather… rich, for the legacy music industry to hire Metalitz, who proudly states that he was “instrumental in the drafting” of the DMCA while lobbying on behalf of these same groups, to now write a jeremiad about how totally awful the DMCA is for these same groups. But that’s what’s happened. The document literally mentions Google or YouTube more than once per page. But it starts right in with the industry’s concerns, which might be summarized as “why hasn’t Google stopped the evil piracy!?!?”

The Music Community?s list of frustrations with the DMCA is long. A broken ?notice-and-takedown? system. Toothless repeat infringer policies. Active services mischaracterized as passive intermediaries. Incentives for services to embrace willful blindness instead of preventing known and widespread infringement. The words ?representative list? read out of the statute.

Basically, Metalitz uses the document as a chance to list off how he’s sad that the courts have basically ruled against copyright holders trying to chip away at the safe harbors at pretty much every turn:

Courts have also given little meaning to key provisions for content owners in the DMCA bargain. Examples include ?red flag? knowledge, repeat infringer policies and representative lists. The result: safe harbor status for services that choose to stick their heads in the sand rather than do their fair share, forcing content owners to divert valuable resources from away creating content to sending minimally effective take down notices, or for content owners with limited resources, to actually refrain from sending takedown notices at all. Content owners, especially those with limited resources, simply cannot take on the entire digital universe alone.

At its worst, the DMCA safe harbors have become a business plan for profiting off of stolen content; at best, the system is a de facto government subsidy enriching some digital services at the expense of creators. This almost 20 year-old, 20th Century law should be updated.

Astoundingly, this comment claims that the results in the YouTube and Veoh lawsuits prove how broken the DMCA is and how much it favors internet companies. Remember, Veoh was a YouTube competitor that won its lawsuit that had been filed by Universal Music… but went out of business due to the legal costs of defending itself under the DMCA. And Metalitz and the RIAA are bitching about the fact that Veoh won… as if that was the travesty in the case, rather than the fact that the recording industry was able to shut down a perfectly legal web service that many people found useful.

The comment goes on to whine that even as more music is available to the public these days, revenue is down for some of those who signed on to the comment (the comment is careful not to mention that ASCAP, BMI, SESAC and SoundExchange revenue keeps going up… but… those inconvenient details must be ignored). What the filing also ignores, of course, is that these very same players fought tooth and nail against any of the innovative services that helped make this revolution in music accessibility possible. They basically now want to tax all the innovative companies who experimented and found the models that work and make consumers better off, while they themselves did none of that and actively sought to block nearly every new innovation. Talk about entitlement.

The comment also ignores the basic fact that if so much more music is being consumed today, that seems to suggest that the law must be working in some manner, seeing as the purpose of copyright law is to incentivize the creation of new works so that the public can benefit. By their own words, that seems to be happening.

Despite music being more popular than ever today, U.S. music industry revenues have been virtually flat since 2010 and are down nearly 50% since the DMCA was enacted in 1998. This has led to what we call the ?value grab?, creating market distortions that lead to bizarre statistics like vinyl records generating more revenue for the industry in 2015 than the billions of on-demand ad-supported music streams on YouTube and similar services.

Except, of course, that comparison between vinyl and YouTube is total bullshit. As we were just discussing a week ago, the industry is comparing apples and oranges, using the gross “retail value” on vinyl (ignoring discounts and all the money that goes to everyone in the distribution chain) and only counting the net “wholesale value” on free streams (and ignoring the upsell opportunities or other revenue that comes from ad-supported streams).

The summary so far: we wrote the DMCA, but now we’re going to whine about it. The public is benefiting like never before from new music — so we’re going to ignore that the purpose of copyright law appears to be met. We’re not making as much money as we used to (ignoring that some of us are making much more than we used to)… but we see big internet companies making lots of money, so we’re going to ignore that it’s probably because they innovated and built services the public wanted while we sued our own biggest fans.

Compelling!

And, of course, the comment pushes for a “notice and staydown” regime:

Copyright owners should not be required to engage in the endless game of sending repeat takedown notices to protect their works, simply because another or the same infringement of the initially noticed work appears at a marginally different URL than the first time. The current standard of ?URL by URL? takedown does not make sense in a world where there is an infinite supply of URLs. As described in the response to Question 15, technologies exist to identify content that is reposted on a digital service after it is removed, services of all sizes have implemented them, and they should be deployed as a standard industry practice.

Again, this ignores the basic fact that copyright is context dependent. And you can’t put a total block on content, because you don’t actually know if the content is actually infringing each time. Hell, remember in the Viacom case against YouTube (which the comment whines about), Viacom had to admit that the evil pirate uploaders to a bunch of the videos… were actually Viacom employees trying to market Viacom content. This is why we don’t do full on content blocks, because just because the content is up, doesn’t mean that it’s infringing.

Even more ridiculous, while at one point noting that almost no one files counternotices, so that means that DMCA takedowns are almost all legit (despite a recent study debunking this point), it later whines that there are too many false counternotices:

In our experience, the counter-notification process results in too many false-positive counter-notices. For example, IFPI received counter-notices on 653 infringements, based on a sample of 98,753 infringements noticed to YouTube. After reviewing these counter-notices, it appeared that over 80% of the counter-notices had no good faith basis for claiming ?mistake or misidentification,? the only valid statutory grounds for a counter-notification. Yet, based on this sample, the association representing the rights holders would be required to institute over 500 lawsuits in order to enforce their rights. This is an unmanageable burden. These statistics further demonstrate that the deck is unfairly stacked against rights holders.

Filing 500 lawsuits would be an “unmanageable burden?” Funny, the RIAA was able to go after at least 30,000 individuals. And, really, this paragraph acts as if filing a lawsuit is the only possible remedy in such a situation. It’s not.

Also, trying to make sure that they’re as evil and against the public and fans as much as possible, the comment actually decides to whine about the ruling in the dancing baby case, saying that it’s some horrible burden to have to consider fair use before sending a takedown, even though they just need a subjective good faith belief, rather than an objective one:

We take this opportunity to highlight one case in particular, Lenz v. Universal Music Corp. In that case, contrary to Congressional intent and the weight of authority concerning who has the burden of claiming and proving fair use, the court held that a copyright holder must subjectively consider fair use before submitting a DMCA notice. This unique decision, and the fanfare that has followed it, is quite remarkable considering that other courts have expressly rejected that view, and that the Supreme Court has routinely held that the burden of proof for a fair use defense rests on the accused infringer.

They also whine that the newly amended version of that ruling took out the random dicta that an automated takedown system could meet the standard.

Believe it or not, that’s just a sampling of all the ridiculousness in the comment. It’s simply not a reality-based document. One hopes that the Copyright Office might actually recognize that, though that seems unlikely.

Filed Under: copyright, dmca, dmca 512, liability, notice and staydown, notice and takedown, safe harbors, steve metalitz
Companies: ascap, nmpa, riaa, soundexchange

YouTube Fails In Explaining Flood Of Takedowns For Let's Play Videos

from the not-how-to-do-this dept

Last week, there had been some rumors that YouTube was changing its policies around so-called “let’s play” videos, with some arguing that “Google was implementing SOPA” when it came to let’s play videos — and that all videos would have to be previewed first to make sure there was no use of copyright-covered content. That seemed like a clear exaggeration, but over the past few days there have been numerous reports from a variety of different sources about how many of the biggest video game channels on YouTube were suddenly getting inundated with copyright claims, many of which people felt were bogus.

So what’s happened? Well, it’s not that YouTube “implemented SOPA.” Rather it appears to be a combination of pushing out its ContentID “scanning” program to channels that are listed as affiliates to so-called “MCNs” (Multi-channel Networks). MCNs are effectively “collections” of independent YouTube channels, banding together for certain advantages, such as cross-promotion and ad sales across all videos. While most people are familiar with ContentID, as far as I can tell (and despite repeated attempts to speak to multiple people, no one seems interested in explaining the details), it appears that ContentID generally works on newly uploaded videos, whereas going back and scanning existing videos is more targeted. And, it’s that back scanning that has been “enabled” here. In other words, if those videos had been uploaded very recently, they might have been hit with the same ContentID claim, but these were “back catalog” videos in many cases, which sort of grandfathered them in. That explains the sudden influx. Going back over all those old videos has turned up a bunch of matches.

Then there’s a separate issue: which is that many people claim that the claims are completely bogus. Even though they’re on let’s play videos, they’re not coming from the video game companies, but other third parties. In fact, the big video game companies, like Ubisoft, Capcom and Blizzard say they have no problem with let’s play videos and are actually trying to help those impacted in figuring out what to do.

This move is almost certainly a result of the National Music Publishers Association (NMPA) suing Fullscreen, a big MCN, claiming copyright infringement. There are some generally interesting legal questions about whether or not an MCN is actually liable for any infringement by an independent YouTube producer, but some of these MCNs have grown to be quite large, and the publishers want money. YouTube is likely trying to clean up the videos associated with MCNs in one big move to avoid any future issues.

What that means, however, is that it’s likely one of the reasons that people aren’t recognizing the names making the copyright claims is that the matches aren’t on the game play, but rather the music either in the video games themselves (likely in many cases) or that video makers add to their videos in general. To their credit, it appears that many of the gaming companies are actually helping video creators clear that music.

The whole thing is a bit of a mess, but not as crazy as it first appeared. And it’s certainly not a case of “SOPAfying” YouTube videos. It’s just extending the ContentID scanning to those channels to try to clean out problems and, hopefully, avoid future lawsuits against those MCNs.

That said, YouTube’s communications over this have been dismal and have greatly contributed to the problem. The company has put out the identical statement to everyone who’s asked (including us):

We recently enabled Content ID scanning on channels identified as affiliates of MCNs. This has resulted in new copyright claims for some users, based on policies set by the relevant content owners. As ever, channel owners can easily dispute Content ID claims if they believe those claims are invalid.

That’s… somewhat useless. It doesn’t address the reasons or the concerns of the video makers, and has many scared. That is not the best way to explain the situation, and only lends credence to the exaggerated claims that YouTube is helping to kill off let’s play videos, when that’s not the case at all. It also presupposes an extraordinary level of knowledge that most people don’t have of Content ID, copyright, MCNs, licensing, publishing and more. It’s basically the opposite of providing the information that video makers actually need — leaving them freaked out about a massive influx in copyright claims they don’t understand. Without a better, more honest and clear explanation, most users are blaming the most obvious party: YouTube.

It appears that YouTube briefed some MCNs on the basics of this change, which is why those rumors came out last week, as the MCNs tried to explain the issue to the affiliates — but generally did so badly, because this stuff is complicated enough as is, and then you add a game of legal telephone where the people passing on the details don’t really understand the issues either. YouTube could have done a much, much, much better job laying out the details of what it was doing and why (and even how that actually should help MCNs by avoiding lawsuits like the NMPA’s. But instead, it’s got a ton of people freaked out and its communications to those people are almost non-existent other than the cryptic statement which, while accurate, fails to portray the full situation.

Filed Under: contentid, copyright, flagging, licensing, mcn, takedowns, youtube
Companies: google, nmpa, youtube

Copyright Lobbyists And The $1 Trillion Fallacy

from the even-if-we-take-the-bogus-stats-at-face-value dept

Well, here we go again. Earlier this week, the IIPA (a sort of uber copyright maximalist lobbying group, made up of other copyright maximalist lobbying groups, including the MPAA, RIAA, BSA, AAP, NMPA, ESA and IFTA) released a new report on the economic impact of “the Copyright Industries.” This report comes out every few years, written by the copyright maximalists’ favorite economist, Stephen Siwek, who is well known for both these reports and another set of reports in which he tries to calculate “losses” due to infringement using the most ridiculous and misleading methodology imaginable. This report is slightly different. There’s not much in the way of direct methodology: he’s basically lumping together a bunch of industries as “core copyright” industries, and presenting some stats around them. There are also the “partial copyright” industries, which are kind of laughable, since it includes things like “furniture.”

The report is incredibly misleading (and is being used in a misleading way), but we’ll get to that. Instead, let’s start out by taking the report at face value, and assuming that it is accurate. The claim that the backers of the report (including NBCUniversal, which funded it) are latching onto is the big round number: the claim that:

for the first time, the contribution of the core copyright indus- tries of the U.S. economy surpassed one trillion dollars in 2012

One Trillion! Big number. So big that the IIPA was even able to get the head of the Copyright Office, Maria Pallante, to highlight it in her presentation that coincided with the launch of the report. She apparently put that number on a single powerpoint slide and asked people to remember that number.

As we’ll describe, that number doesn’t actually say what Pallante and others are pretending it says, but even if it did… doesn’t it suggest that the industries are doing fine? Even as infringement has continued to be a major issue, and there are new ways to share content around the globe, the data in the report suggests that the “core copyright industries” have continued to grow and thrive at a very consistent pace — completely contrasting the supposed doom and gloom these same folks tell us about how piracy is supposedly killing these industries.

Instead, the report shows a steady increase in revenue within these industries, a steady increase in employment and a steady increase in the salaries of those employed in those industries — in which they make more than people in many other industries. Basically, every chart in the report suggests that the “core copyright industries” are thriving, especially compared to the wider economy. Take, for example, the compensation chart:

And yet, during those same years, we were being told, repeatedly, that those industries were dying, that jobs were going away and that we needed much stricter new copyright laws. This chart seems to debunk all of that.

But… of course, that’s not how the IIPA and its supporters are spinning this report. Instead, they’re using it to argue that “the core copyright industries” are “so important” to the US economy that they need to new laws and protection:

“This study represents a milestone,” said Steven J. Metalitz, counsel to the IIPA. “In order to preserve and enhance jobs, exports and economic contributions, it is critical that we have strong legal protections for U.S. creativity and innovation in the U.S. and abroad.”

[….] “This report makes it crystal clear that workers in the creative industries make a huge contribution to America’s economy,” said Matt Loeb, international president of the International Alliance of Theatrical Stage Employees, which represents crew members on movies and TV shows. “It also underscores the urgent need to do more to build, strengthen and protect employment in this dynamic part of our nation’s economy.”

But… neither of those claims follows from the numbers presented. If these people knew anything about basic economics, they’d know that protectionism doesn’t help grow markets — it constrains them. The way you “strengthen” employment in these markets is by allowing competition and innovation to flow, which is the exact opposite of the legal regime they’re pushing for. Of course, everyone knows what this is really about. The report is supplied by a few legacy players in this space, the ones threatened by innovation and upstarts. It’s being pushed by the gatekeepers who don’t want to compete. They don’t want there to be more competition and innovation, because that tends to allow artists and creators to go direct — and not to have to rely on gatekeepers, who take an 85% cut of all revenue.

Even worse, the report is incredibly misleading — in effect allowing Siwek, the IIPA, Maria Pallante and other copyright maximalists to blatantly use the success of others who did not rely at all on copyright to support their notions that we need more copyright. That’s because of a basic fact that is totally ignored in the report: just because you produce “copyright” covered content, it does not mean that you needed copyright to do so, or that you require copyright laws to do so. Instead, the report and its supporters are falsely claiming that every bit of revenue from the “core copyright industries” is because of strict copyright law. That’s provably false. Hell, technically, the revenue that this very site that you’re reading now produces is almost certainly included in that “$1 trillion.” We’re very much a part of the “core copyright industries.” And yet we don’t rely on copyright. At all. In fact, we dedicate all of our content to the public domain.

And it goes beyond that. A significant portion of the revenue they’re discussing actually comes from computer software:

But that’s an industry where there’s tremendous support for changing copyright laws so that there’s less protection and more sharing. The growth of the open source movement, and the fact that it powers so much of what we do today, is hardly an argument for stricter protectionism and ratcheting up copyright laws. But, by lumping them all in as “core copyright industries” and then pretending that means you need strict copyright laws to create that content, Siwek, his funders and their friends get to actually use the innovations and business models that show why stricter copyright may be a bad idea… to argue for stricter copyright law.

It’s not just blatantly dishonest, it’s co-opting the economic activity that disproves their argument to pretend it supports their argument. That Maria Pallante would quote that number and support it suggests serious problems in how the Copyright Office views things today. This kind of report has no business being taken seriously, let alone being used in any policy arguments at all. But, if it is, at the very least, people should point out that, if taken at face value, it pretty clearly shows that the copyright maximalists have been flat out lying about their industries struggling, and how they need things like SOPA, TPP and other legal changes.

Filed Under: copyright, copyright industry, copyright maximalism, core copyright, economic impact, fallacies, stephen siwek, steve metalitz
Companies: bsa, iipa, mpaa, nmpa, riaa

When Is A Lyric Site More Than A Lyric Site?

from the used-for-commentary dept

Honestly, if there’s anything more stupid than the music industry and song-writers going after lyrics sites, I can’t imagine what that thing might be. We’ve talked in the past about how short-sighted it is for the profiteers of interest in songs targeting websites that do little beyond promoting interest in those same songs. Even the most obviously single-purpose lyric site that does nothing but post song lyrics is likely innocuous at worst and beneficial to all involved at best. Yet they’re constant targets. Blech.

But sometimes this goes beyond blinder-vision and moves into a complete mis-targeting. That seems to be the case with the inclusion of RapGenius.com on the National Music Publisher’s Association hitlist of sites from their press conference on Monday. The NMPA insisted all sites immediately pull lyrics off the site. RapGenius, for those of you not in the know, is much more than a lyrics site. But, according to one guy that I think I’ve heard of before:

David Lowery, a veteran of the bands Camper Van Beethoven and Cracker who has tracked the sites in his research for the University of Georgia, says they are big business.

“Unlicensed lyric sites are largely ignored as copyright infringers, but in fact these sites generate huge web traffic and involve more money than one might think,” he said. “The lyric business is clearly more valuable in the Internet age.”

What?!? First, it’s hard to square these sites being ignored with their constantly being targeted and sued. Second, to understand what a site like RapGenius is and does, you actually have to look at the site. A cursory glance shows that the entire point of the site is to foster a conversation and commentary around lyrics (and more), their meaning, and their interpretations. This is done through user annotations, fostering a back and forth that often times includes the songwriters themselves. As RapGenius founder Ilan Zechory notes:

“Rap Genius is so much more than a lyrics site! The lyrics sites the NMPA refers to simply display song lyrics, while Rap Genius has crowdsourced annotations that give context to all the lyrics line by line, and tens of thousands of verified annotations directly from writers and performers. These layers of context and meaning transform a static, flat lyric page into an interactive, vibrant art experience created by a community of volunteer scholars. Furthermore, music is only a small part of what we do. Rap Genius is an interactive encyclopedia for annotation of all texts — anyone can upload and annotate texts relating to music, news, literature, religion, science, their personal lives, or anything else they want,” he concluded.

So, the questions are pretty obvious. First, why is the NMPA going after a site that is clothed in several layers of Fair Use armor? And second, why is an association that is supposed to protect the rights of all their songwriting members going after a site that many of them appear to enjoy using. Finally, what the hell kind of good is supposed to come of any of this? I’m not sure what the end-game is supposed to be for the NMPA, but this looks like a massive swing-and-a-miss to me. Oh, and it should be noted that people appear to have posted Techdirt articles to RapGenius as well, and everyone at Techdirt thinks that’s great. We’d actually be really pissed off if some misguided attempt to squeeze money out of the site meant that our own content was held back and less widely distributed.

Filed Under: annotations, copyright, fair use, lyrics
Companies: nmpa, rapgenius