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.
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Filed Under: copyright, copyright office, dmca, dmca agent, inducement, publishers, registration, safe harbors
Companies: nmpa, roblox
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Oof.
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I think twitch is not providing enough tools to users to remove content but it's right to resist the riaa eg what's the point of the dmca if the music industry can just demand a L large icense fee for all websites that have user uploads and content
And twitch is used by artist to promote music and find new fans
Kids go on roblox to play games, music is not its primary attraction
It should be obvious any site that has video content needs a dmca agent
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Think of the children!
"...Roblox’s enticement of children to unknowingly commit acts of piracy without protecting them by fully licensing its platform."
Mean old Roblox, making children into criminals!
And here I thought it was about promoting the arts...
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Re:
I think they are well aware of that, though.
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Problem
"...let musicians and the industry know that Roblox is open to licensing deals..."
That's the thing.
They assumed that they were gonna use licenses without permission.
If they didn't say that or stated that they can do so with permission from music publishers, I guarantee you this lawsuit wouldn't exist.
Although I think roblox should've consulted with the music publishers beforehand.
Yeah yeah, I know that sounds stupid. But still.
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Re: Problem
Also:
Would not surprise me, if the music publishers pointed out the fact that the copyright office unilaterally decided to throw out all of those registrations, and state that cause Roblox didn't have a dmca at the time, it was a good reason to sue.
Provided, I doubt it will be important, but if this ends up changing the way the copyright office sees music publishers, this would be interesting.
It would also probably be the last straw for them, as they could probably fix what's broken, so...
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Re: Think of the children!
"It doesn't matter if you're a grandma or a seven-year-old girl,
They'll treat you like the evil hard-bitten criminal scum you are."
--Weird Al Yankovic, Don't Download This Song
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Roblox is like twitch, the riaa waits til a site is a big hit with millions of users then it gets hit with legal action
or 1000s of dmca notices
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Re: Problem
If they didn't say that or stated that they can do so with permission from music publishers, I guarantee you this lawsuit wouldn't exist.
They were were quite literally discussing their licensing deal with Monstercat, there's no way to have more "permission" or "pre-consultation" than an active licensing deal with a record label.
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Re: Re: Problem
Is monstercat part of the NMPA?
I'm meaning a record label from there.
Though however, you do have a good point that there's no way to have more permission.
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ROBLOX needs a smart judge.
"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 [...]"
Hopefully, the court will see past that bullshit argument. If not, then anyone could be found guilty of contributory infringement simply for providing a platform for user-generated content, including bloggers who allow comments.
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I wonder how this entwines with Roblox Corp recently becoming a publicly traded company. Will the majority of shareholders demand compliance to music industry demands? Will there be investor pressure to settle and move on? Will active litigation cause a backlash shrinking their available funds thus making prolonged litigation affordable?
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An idea for Copyright Reform in the US:
Mandatory Licensing. The Patent industry has had such things for years, and is far less convoluted. FRAND licensing is required in many industries in the US and abroad. It is a staple of Patent law in most advanced countries and even many that are less advanced, and enforced globally.
I understand that Copyright patents are much more convoluted, which is actually a massive problem in the industry and most especially for small players. In today's world, making sure you have all the necessary licenses to display or use a piece of music or video can be a nightmare of emails, registrations, and more. THe industry as a whole has failed to keep up with modern demands, intentionally so.
As a small player in the media space, not only do you have to fear the big players ignoring their duty under the the law to consider Fair Use before filing a DMCA take down against you, you also have to fear nefarious actors such as supposed Rights Management companies and bad-faith competitors filing against you out of ignorance of your license or a desire to steal your content for themselves.
Mandatory Licensing can eliminate a great deal of overhead and allow for the centralization of Copyright license verification. Instead of needing to deal with multiple entities with a vested interest in getting their due under the law, and then having to hope and pray another player doesn't enter the space ignorant of your actual status, instead of forcing platforms to be mediators between those claiming infringement and those posting content while utterly ignorant of the actual status of Copyright content, a Mandatory Licensing scheme arranged by Congress and run by the Copyright Office could eliminate a lot of headache in all aspects of the Industry, save money for Copyright Owners, Platforms, Copyright producers, and content creators around the globe.
It could reform the Copyright management system entirely by creating tiers for content use, making accounting much easier for Publishers and Artists. It would give artists a way to check who is licensing their use, see the market for what they are producing and give them much needed feedback on how their works are used. Many artists would greatly desire this information, something that is rarely available to them.
This works for many things. A popular class of video on YouTube is reading posts from other platforms. Under the law in many countries, those posts are protected by Copyright even without being registered. In the US that is different, but currently there is no way of knowing if a post has been copyrighted due to the excessive cost of registration and a lack of centralized licensing. $300.00 may be couch cushion change for a Publishing business, but for the average American it is a very significant amount of money.
That needs to change as well. As it stands Copyright is a privilege only the successful and wealthy can truly afford and gives massive leverage to the publishing industry in dealing with smaller entities and the creative public at large.
FRAND licensing most often applies to standard-essential patents, in this use though it would become a tool across the entire Copyright industry to enable modern creators to use the wealth of Copyrighted content and generational culture to secure the right to creatively use those works while still insuring that Publishers and Artists are fairly compensated. Certain classes of work could be excluded from FRAND licensing, such as feature-length films, novella length works, and more.
The creation of FRAND licensing in the Copyright space would benefit everyone, including the Government, which would be better able to focus on actual Copyright infringement issues and cases. It would eliminate the need for a Copyright small claims court and the attendant need to create an entire new office with all the commensurate bureaucracy and budgeting, as well as the requirement for many people who could not afford to travel in those first several years before such an office became less centrally located.
In short, FRAND licensing in Copyrights benefits everyone, including future generations and their access to Art.
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Re: Think of the children!
Pleas don't missinterpet what they say, it's rather:
We're here to collect the licence fees, I know you think, there hasn't been any agreement, but you setting up shop on our turf was the agreement, now pay up or your business might be hit by unfortunate events, these payments protect you from.
Lawyigi, show them what I'm talking about.
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Re:
Clarification: in the third to last paragraph I mention excluding certain works from FRAND licensing. I meant to say that excluding certain works from purchasing FRAND licensing based on based on the size of the finished new work. All Copyrights would be managed under the new FRAND system regardless of size.
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There MIGHT be a trick
Every Bar that has a music box or even live music, pays a Fee to do so.
If this is available to public use, WHY NOT add it to the use from a public site?
Even if you have to describe yourself as a Bar for recreational drinking.
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'Also why didn't anyone tell us water was wet?!'
“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.
You are surprised and disappointed that a pack of parasites from an industry that has shown that it is willing to wield the law as a weapon to extort and control any platform that catches their eye is acting exactly in that manner? I really don't know what to tell you other than welcome to the real world, I hope that rock you've been camped out under your entire life was comfy because it's rather less so out here.
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Still waiting for home taping to kill music already.
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Re:
Licensing can work when there are a few people with stuff to license and a limited number of licensees. With music, videos, pictures and words, anybody can be a source, and anybody a licensee. Also, it would have the same problem as performance fees collected by the collecting societies, add more middlemen to live off the works of the creative people, and only distribute to the most famous and biggest earners in a creative field.
Note that the legacy publishers control less than 1% of the works in publication, and will ensure that any licensing takes monet away from the 99% of self publishers.
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Re: Re:
I'm not sure about ASCAP, but it doesn't apply to BMI. I've gotten $7.22 in royalties from BMI (most of which comes from the Mega Ran song O.P., for which I composed, tracked, and performed the chiptune outro), as well as earned $17.77 from my publisher Songtrust (whose deal entitles me to all of the royalties given to the publisher on my behalf).
As for people on major labels, this is anecdotal, but I'm fortunate enough to know John Flansburgh of They Might Be Giants, and I asked him a few years ago at a Pizza restaurant in Williamsburgh, Brooklyn, NY if they received their royalties from the songs they wrote for their major label or if other middlemen (such as their songwriting publisher Warner-Chappell) kept them all, and his answer was this:
So while this is anecdotal, it does demonstrate that the while major label may not pay when it comes to record sales, the songwriting royalties from their music publisher do indeed pay.
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Re:
First off, there is no such thing as Copyright patents.
Next, Copyright became automatic 1 Jan 1978, 43 years ago. This post is copyrighted as soon as I post it.
And I'm not going to get involved in attempting to explain FRAND licensing to you.
A whole wall of words that mean nothing.
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Re: Re: Re:
Venue licensing, just in case the performers perform a work for which they do not hold a copyright, which is what is being proposed here, does not collect any data to show who should be paid, and apparently the division is then based on the artists earnings. That is it becomes a means of collecting money with no means of accurately distributing it to those whose works are being used.
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Re: Re: Re: Re:
That is indeed a fair criticism. If the collections agencies cannot do the applicable research, then it's theft: either theft from the copyrights of the songwriters who actually deserve it, or from the public if the song is in the public domain.
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All the other claims are basically throwing stuff out and seeing if it works, but the DMCA agent claim is huge.
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You really don't understand copyright law. Roblox is fucked on many levels.
People are free to license music or not use it.
Your articles always support pirates, hackers, defamers, doxers, etc.
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Roblox is completely screwed here. There's no right to STEAL IP.
They encourage it, host it, and profit from it. It's game over.
This isn't about moderation.
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Re: Re:
I agree, there is no such thing as copyright patents. That's probably why I never claimed there were.
No, copyright is NOT automatic in the US. You must register if you wish to use your right to copyright it. If someone else registers it you will have a damned difficult time convincing the court that you are the rightful artist in question. Regular readers here also know that if your registration for a copyright is Pending, the court is not going to accept it.
And I did explain FRAND licensing as well, though from your overall post I don't think you read all of mine nor understood half of it. FRAND applies to Patents and specifically to patents on Industry Standards as set by a standards-setting body. I used FRAND as an example of how licensing can be much more streamlined than it is today.
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Re: Re:
While many dislike or distrust the government, my suggestion was a government entity to manage this licensing. Private entities cannot be trusted for all the reasons you and others below mention. I don't really like expanding the government, but in this case if the government is going to grant a right, then it is the duty of the government to oversee that right, rather than foisting it off into the greedy hands of private entities.
I would like to ask where you got your percentages from? I apologize if that comes off as challenging, but I would really genuinely be interested in finding data on how much legacy publishers actually control of the copyrighted marketplace, especially in the US.
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Re: home ****ing is killing...........
Well, I've made six sandwiches this week and look at all the restaurants that have gone out of business.
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Re: Re: Re:
With any of the legacy publishers, and individual can at least keep up with the titles that they publish in a year. With the labels, it is relatively easy for an individual to find and list all recording artists currently active, while finding all musicians self publishing on the Internet is a near impossible task.
Check the map of the Internet, and noting that it is log scaled, twice the area = ten times the traffic, and note how much bigger YouTube is than Netflix. The size difference would be even higher if it was based on the number of works published. In 2019, YouTube was running at 600 hours a minute being published on the platform, In a few minutes, there is more hours published on YouTube that is being created by Hollywood and the TV companies in a year.
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Re:
How's that John Steele defense fund coming along bro?
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Re:
[Asserts facts not in evidence]
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Re: There MIGHT be a trick
and then in that analogy, you several problems.
What would the scope of that idea look like when applied elsewise? In this case, taking it to it's logical concussion would mean that any online multiplayer game with voice communication would require a fee. It would be like demanding a fee for a random person walking into a building with music playing on their phone.
Who do you pay the fee to (how to facture in independent artists)? and for that matter, who pays the fee: the customer or the owner? Given the customer is effectively bringing their own music to the building, see the above point.
the main problem in this analogy is that for a bar, the music box is under the bar's control while the same is not necessarily true of the 'music box' of a website/game.
Looking at games in particular, these issues potentially creates a massive 'turtles all the way down' type problem as multiplayer indie games often have a decentralized nature in the sense that servers are hosted/created by the players (or an unrelated third-party company on a player's behalf). In that case, the company that runs the game itself may not even be aware of the existence of a server. Given that knowledge, how would you even determine fees?
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Re: Re: There MIGHT be a trick
Problem, a license fee paid to the labels only goes to them and some of that money to the artists that they publish. Probably the majority of the music used online comes from independent artists, and just how do you keep track of whose music is being used?
The idea of a license fee comes from an industry who are selective, and only publish a few artists, while many more artists self publish online, with some using licenses that allows anyone to use their music. This is nothing other than people make money online, so give us some of it, where some can grow to be burdensome.
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Re: Re: Re: Re:
Thank you for explaining that! I didn't even think of it in those terms but that makes a lot of sense.
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Re: Re:
Oh my frikkin god I did say Copyright Patents. That was a typo. I do feel like a dumbass, thanks for pointing that out.
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Re: Re:
Not at all. Most works just aren't valuable and most viewers want gatekeepers.
These publishers invest a fortune in creating stuff the world wants.
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Re: Re: Re: There MIGHT be a trick
Artists are free to not sell out. Many do not, and earn very good livings as a result.
PewDiePie does okay!
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Re:
Why do you think DJs would talk over the beginning and ending of songs on the radio?
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Re: Re: Re:
YouTube is getting at least 100 times the traffic than the gatekeeper related sites, so point 1 is not true.
The only part of the legacy Industries that invests in creating new works are the studios, film and TV. The rest buy up a small percentage of works already created., so point 1 is only partly true.
Even the film/video side of the Industry is being challenged by alternative funding models. Time Team has crowd funded more programs.
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Re: Re: Re: Re: There MIGHT be a trick
And a license fee to the labels will only harm his income. The legacy industries behave as if their stuff is what creates the value, even when there is evidence that it does not.
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Re: Re: home taping
"Why do you think DJs would talk over the beginning and ending of songs on the radio?"
Well that, and more often than not, big egos.
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Re: Re: Re:
"When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created."
https://www.copyright.gov/help/faq/faq-general.html
You may be thinking of this:
"You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work."
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Re:
Please tell me where they do those things.
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Re:
I don’t understand copyright law your right. You should
Make it better. So people can. You must be incompetent.
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Re:
Let the butt hurt of failure flow through you.
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