YouTube's Offer To Musicians Isn't As Bad As Some Believe, But YouTube Should Still Change Its Policies

from the things-can-be-fixed dept

Mon, Jan 26th 2015 1:10pm — Mike Masnick

Last summer, there was some kerfuffle about YouTube allegedly threatening to kick musicians off of YouTube if they didn't agree to license their music to the subscription service it was building. At the time, we wrote about how this was overblown. As we noted, anyone could still post whatever videos they wanted to YouTube, it was just a question of whether or not you would be in YouTube's partner program, which would allow the artists to use ContentID to monetize other people's videos and a few other features as well. After I wrote that, musician Zoe Keating, who I consider a friend, emailed me the details of her own struggle with YouTube over this issue, and how the deal being offered actually was pretty crappy for her. Late last week, she posted a similar discussion on her blog, asking what she should do about YouTube, because she wants to use ContentID, but doesn't like some of the other terms in the deal.

Zoe's post has since gone somewhat viral, with many people insisting that YouTube's terms are absolutely crazy. Of course, when you look at the details, the terms are not really that crazy. However, YouTube should change them. Let's dig into the situation to explain why.

Zoe's main concerns were these terms:

1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description will be automatically included in the music service too.

2) All songs will be set to “monetize,” meaning there will be ads on them.

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

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

5) The contract lasts for 5 years.

As she noted, if she didn't sign the agreement, her YouTube channel would be blocked -- though, as we explained in our post last year, and as Zoe added in an update -- she could take her existing YouTube channel out of the partner program and keep it up. However, in doing so, she would give up the ability to monetize her music under the same terms.

Why these terms aren't entirely insane: From my reading of it, YouTube's concern is that consumers who pay for YouTube's fee-based music service will be reasonably angry if there is music they can find on the good old-fashioned free side of YouTube, but which is not accessible after they pay. From a consumer experience standpoint, that is kind of a crappy situation. You could definitely see some subscribers who get frustrated. In fact, I'd bet that there'd be some blog posts somewhere of someone bitching out YouTube's paid service for not having certain music that was available on the site for free... and that post would likely go viral as well, with people talking about how crappy YouTube's paid service was. Also, it wouldn't surprise me if some enterprising copyright holder somewhere would come up with some sort of legal theory involving suing YouTube over this, saying that it now knows which tracks are unlicensed, and thus has to proactively take them down. That is, it's entirely possible that without these requirements, YouTube goes back to facing a massive copyright liability problem.

Why YouTube should change its terms anyway: These are truly edge cases. Most musicians do seem fine with being in the various services, but if they (like Zoe) want to just to make use of ContentID, but not release all their music on YouTube, that should be allowed. As Zoe has told me in the past, the thing she likes about ContentID is the ability to pick and choose what videos to monetize. Use her music in a school project -- and she just let's it go and is happy to see. Use her music in a big commercial feature, and she'll click the button and get some money out of it. But the ContentID portion should be separate from the "release my music" portion.

On top of that, the requirement to release all music on the service, combined with the similar requirement that you have to release the music on YouTube the same time as on any other platform, is unnecessary. Yes, YouTube wants to make sure that its catalog competes with everyone else's. And, fragmenting the music world with "exclusives" is generally a crappy experience, but there should be some reasonable way to allow Zoe to do things like offer up songs to her biggest fans on Bandcamp first. YouTube should be able to create terms that accommodate that, and it's a shame that the company won't do so.

In the end, most of the terms are not really that unreasonable. It only creates an issue in special cases where someone wants to do something a little bit different. YouTube is left with the choice of which crappy edge case it's going to have to make a mess of: either the one where a musician wants to do something a little different, or the one where some consumers might get annoyed that certain music isn't available on its service. YouTube went with option (a), but there's really no reason that the company can't be a little more flexible in designing terms that account for cases like Zoe's.

The other issue is that, once again, YouTube has done an absolutely dreadful job explaining itself. This is not the first time this has happened. In fact, it seems to happen with alarming frequency that when YouTube makes these kinds of policy changes, it doesn't do a good job (or any job at all) of explaining them to the public in a way that makes sense. Frankly, the company could do a much better job being open and transparent about the policy choices it makes and the reasons why it does these things, but for whatever reason, it chooses not to do so.

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Filed Under: contracts, streaming, youtube, zoe keating
Companies: google, youtube

26 Comments

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Anonymous Coward, 26 Jan 2015 @ 1:36pm

hahaha "somewhat" viral. You're hilarious Mike Masnick. You never disappoint.
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Anonymous Coward, 26 Jan 2015 @ 1:43pm

Re:
Your contribution is so valuable.
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BS Simon, 26 Jan 2015 @ 2:18pm

Just one problem.
Your right ContentID does need to be separate from the paid music. However, there is something that would prevent me from signing up.

"5) The contract lasts for 5 years."

In today's fluid music scene, a multi year contract for electronic distribution is crazy. Even Amazon doesn't require more than three months exclusivity for KDP Select (which includes the Kindle Lending Library and Kindle Unlimited.)
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Anonymous Coward, 26 Jan 2015 @ 2:39pm

1) Seems like a potential false claims issue Youtube will have to take serious somewhere down the line.

2) This one sounds like something Youtube should be able to sort out technically and legally. As a starting position it is not unreasonable, but neither is it a sustainable requirement if they want as many musicians as possible.

3) This is argued as reasonable in the OP and I would tend to agree.

4) Sounds like a relatively reasonable requiremeent, doubling as a silent DRM.

5) This is a couple of computer ages and with 1) and 3) really tying the musician up, the lenght is problematic.
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Mr. Oizo, 26 Jan 2015 @ 3:16pm

The 'deal' (force-fed) is crap because google overreaches.
That aside: You seem to not mention the fact that the original authors, if the accept the deal, allows all users of youtube to remix their videos, and that Google will then decide what they are supposed to get.
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Anonymous Coward, 26 Jan 2015 @ 3:31pm

So YouTube are the new RIAA, basically?
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Anonymous Coward, 26 Jan 2015 @ 4:01pm

Re:
Meet the new boss, worse than the old boss.
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Devonavar (profile), 26 Jan 2015 @ 4:22pm

The is a cultural problem
What this really boils down to is a cultural problem.

I sympathize with artists here. I completely understand why an artist would want to be able to choose how her music is released. This is partly what copyright is designed to achieve: Control for the artist.

At the same time, it's unreasonable to expect YouTube (or anyone) to negotiate individual agreements with every single artist. That way lies licensing hell, and it is what is preventing any (non pirate) organization from building a truly convenient music service. Copyright is *also* meant to achieve the promotion of arts and culture, and allowing artists to withhold their works from YouTube (or anywhere else) does not achieve this.

Here's the thing. YouTube should NOT be in the position of dictating terms here. They are not a neutral party.

What is needed is a universal set of public rights for how publicly released culture is treated. The deal should be this: If you publish, the public gets rights to the work. The work needs to be available, universally, to anyone who wants to use it or build on it. This makes publicly released music and art *public* goods, which they are ... any cultural artifact is valuable because it is *public*. There's no such thing as private culture; that's called personality.

And, if cultural works are public goods, anyone who wants to gain privately (i.e. profit) off of them has to pay taxes to the public. The public can then compensate the artist commensurately. Alternately, we can also allow private licensing agreements that exempt purchasing entites from the public tax in exchange for channeling direct compensation towards the artist.

This is basically a blanket licensing scheme, with one major change: Instead of charging the public for the artistic works, the costs are bourne by people who want to profit off of these public goods. YouTube is welcome to show advertisements next to the songs, as long as they pay taxes that go back to the artists. You could also impose tracking requirements so that no PRO is needed to determine who the money goes to. If you profit off a piece of public culture, you are required to identify that piece of public culture, and the author gets a tax kickback for their effort.

This would take the power out of the hands of the distributors and middlemen and give it to the artists in one fell swoop. Because an artist is fundamentally entitled to compensation on the basis of publishing their work, the only middlemen who can make money will be the ones that can either drive traffic (thus accruing more licensing taxes back to the author) or that can sign up licensing deals from other users (e.g. advertisers / commericial licensing deals).
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Anonymous Coward, 26 Jan 2015 @ 5:58pm

Up Is Down
You say, "we explained in our post last year, and as Zoe added in an update -- she could take her existing YouTube channel out of the partner program and keep it up"

No, she couldn't.

She says, "They went on to say that if didn’t sign the agreement and wanted to keep my videos up I would have to unlink my channel so that it is not connected to the music agreement and then make a new channel under their regular non-music partner terms."

In this case, "keep my videos up" doesn't mean keeping the "it" channel up – a fact you are trying to elide. She is not allowed to keep her old channel under the regular user license, only that she must first use the old channel to, in their databases, unlink the music on it from the program. She then has to create a new channel and reupload everything. It is the opposite of keeping "it" up, keeping the web locations, user bookmarks and playlist adds, comments, users knowing where you are, recognizing your familiar channel name.

YouTube is being lazy and cheap – at best – in not finding a way to allow a channel and its content to leave the program and revert, with the user's consent, to the usual free use license. It is more likely a coercive tactic.

Loosing and having to re-create a channel? That's every bit as bad as it seems.
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Anonymous Coward, 26 Jan 2015 @ 7:08pm

What?
youtube can do whatever they want. It's their platform. Don't like it, don't participate.
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David, 27 Jan 2015 @ 1:09am

To be fair
Over here in Germany, the standard contract as a musician you get from the GEMA (German equivalent of RIAA) is all content, 5 years minimum. If you don't sign that, you are off. Since all music venues have to pay through the nose to the GEMA anyway (unless you can prove that all of your artists are not under contract with the GEMA, and yes, they got a court to force radio stations to pay for music by musicians who chose to stay pseudonymous), they are rarely interested in playing or rather paying anybody else if they need to pay the GEMA anyway.

So this kind of "sign everything away for at least 5 years" deal is absolutely the industry gold standard for screwing over musicians.

You can only get something else if you are important enough for the legal department to cough up an individual contract for you rather than forego the pleasure of having you sign a contract at all.
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Ninja (profile), 27 Jan 2015 @ 1:43am

Re: The is a cultural problem
I like your ideas and that's like I envision a sane copyright system. If there's no commercial exploitation then it's green light, otherwise you either use the blanket license or strike a deal with the specific artist. I'd go further and argue there must be a central, public database where the artists are listed and their stances are clear: go for blanket and receive from these public funds or I'm just for tailor made agreements. And copyrights should belong to those who created it, not some middlemen. In case of movies the blanket might be the only solution since more than one person/group may hold the copyrights.
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alan, 27 Jan 2015 @ 5:32am

Terrible article...
Further proof the tech industry continues to live within an endless echo chamber, telling itself what it wants to hear.

Content ID was developed as an answer to the issues regarding copyright infringement with music on YouTube. Since they have no tools for creating an actual sync license (required when syncing music and images - something they aren't capable of doing legally - 10+ years on), a blind eye is turned to most of the infringement occurring on the platform (images for example) in exchange for monetizing the music infringement. From Google's own Congressional testimony:

"For example, Google has invested more than $60 million to date on the development of Content ID on YouTube. With this system, rights holders are able to identify user-uploaded videos that are entirely or partially their content, and choose, in advance, what they want to happen when those videos are found."

Now Google has decided that since this tool has worked so well as both a carrot and stick, they can pick and choose which of those you'll get and it is take it or leave it.

What they are doing by forcing artists or rights owners to take their terms in exchange for Content ID is saying that we don't care about your infringement, we'll hide behind our safe harbor and DMCA process and leave enforcing it up to you. As for monetizing it...good luck. At the scale things are being created...with Content ID alone scanning over 400 years of video a day...for any small label or artist, this becomes an impossible task.

So it is carrot or stick, but then the same issues remain...Zoe and others still have infringement occurring on their rights as artists and business people. I'm 100% certain that if a giant billion dollar company started a platform where anyone could 100% replicate this sites articles every day word for word, and then ran ads against it, but swap out all the images for their own, and then told Techdirt, "Hey...safe harbor/dmca. We will monetize this infringement, but you'll have to agree to our terms of use." And every day you issued a takedown another mirror popped up...you'd see this differently. Because that's what's happening to artists like Zoe when anyone uses her music on YouTube without her permission.
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Mike Masnick (profile), 27 Jan 2015 @ 6:20am

Re: Terrible article...
I'm 100% certain that if a giant billion dollar company started a platform where anyone could 100% replicate this sites articles every day word for word, and then ran ads against it, but swap out all the images for their own, and then told Techdirt, "Hey...safe harbor/dmca. We will monetize this infringement, but you'll have to agree to our terms of use." And every day you issued a takedown another mirror popped up...you'd see this differently.

Actually, no. All our works are in the public domain. Lots of sites repost them and can do so perfectly legally. There's no reason to issue takedowns. Why would we waste so much time doing so when we can focus on actually monetizing our work directly?
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That One Guy (profile), 27 Jan 2015 @ 6:30am

Re: Re: Terrible article...
But... but... pirates... can't compete with free... how are you supposed to maintain a thriving community if anyone can just copy your stuff...

Oh, right, forgot those little 'connect with fans' and 'content isn't everything, what matters is what you do with it' ideas, that would do it.
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DannyB (profile), 27 Jan 2015 @ 7:16am

Just one teeny problem
YouTube: I am altering our deal. Pray I don't alter it further.
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alan, 27 Jan 2015 @ 10:58am

Re: Re: Terrible article...
I didn't say "works"...but let me clarify what I meant...if someone took and replicated this entire site every day with no links back to you...essentially a mirror, and no attribution...you'd be completely fine with that?
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Gwiz (profile), 27 Jan 2015 @ 11:20am

Re: Re: Re: Terrible article...
....if someone took and replicated this entire site every day with no links back to you...essentially a mirror, and no attribution...you'd be completely fine with that?

Yes, he would and has been fine with that. There's been a couple of sites that did exactly that. They eventually failed (well, at least I think they did since I can't find them anymore) since they can't compete with the CwF (connect with fans) of the original Techdirt.

Here's what Mike wrote about other sites using Techdirt articles in 2009:

https://www.techdirt.com/articles/20090116/0348223430.shtml
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John Fenderson (profile), 27 Jan 2015 @ 1:59pm

Re: Re: Re: Terrible article...
What Gwiz said. Techdirt's position on this sort of thing has been very clear, both in words and actions, for a long, long time. Further, Techdirt isn't alone in this. There are a number of other sites that take the same stance.
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Anonymous Coward, 27 Jan 2015 @ 3:40pm

YouTube sucks since it was bought by Google.
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That One Guy (profile), 27 Jan 2015 @ 6:17pm

Re:
Perhaps, but at the same time, Youtube only continues to exist because it was bought by Google.

Without a 'benefactor' with deep pockets, it almost certainly would have been sued into oblivion by now, due to the threat it poses to traditional media.
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Aaron Wolf (profile), 27 Jan 2015 @ 7:15pm

Re: The is a cultural problem
I'm basically with you all the way.

One detail: "This is partly what copyright is designed to achieve: Control for the artist." is only true with the qualification that the control is *for the purpose* of promoting artistic development for the public benefit. Copyright by the U.S. Constitution does not serve the purpose of artistic control as an end in itself.
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Anonymous Coward, 27 Jan 2015 @ 9:33pm

Re: Terrible article...
And the RIAA isn't?
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Sheogorath (profile), 28 Jan 2015 @ 5:18pm

Erratum
"she just let's it go" should be "she just lets it go"; 'let's' is a contraction of 'let us'.
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Devonavar (profile), 29 Jan 2015 @ 12:53pm

Re: Re: The is a cultural problem
I'm not necessarily speaking of US law ... the Statute of Anne *was* designed to solve a control problem for artists (really: publishers).

The Realpolitik of Copyright law *does* stem from artists rights, even if your Constitution doesn't acknowledge it.
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Anonymous Coward, 30 Jan 2015 @ 2:27pm

Re: Re: Terrible article...
Why would we waste so much time doing so when we can focus on actually monetizing our work directly?

Besides which, if you are protecting your history, how are you writing your future?
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