REVEALED: Google's proposed indie music-killing contract terms A leaked version of one of YouTube's controversial secret contracts with independent record labels has been published for the first time - and it appears to be stuffed with clauses that could land Google in trouble. Google wants to launch a new Spotify-style streaming service under its YouTube brand, and so requires music …
Wow, I'm surprised that no one ever thought of that before! Writing streaming software, designing a website, moderating forums, maintaining the infrastructure, and getting the word out about the website while financially supporting it yourself until you get enough ad revenue or user support is so damn simple, you'd be an idiot not to!
Or they could get screwed over by Spotify, Pandora, Apple, Amazon, etc. while not getting anywhere near the same number of ears listening to their music that they'd get on YouTube.
Next you will be saying that Sony and the other big music companies should be forced to give everyone the same deal.
That guy that plays a great harmonica down in the subway is way better then Justin Beber so they should give him a contract and a fat advance too.
They probably could develop a web site and have it paid for by labels, bands and fans. In return for a contribution would be a share of any profits when they start to come in, which would be funded by adverts, subscriptions, or the bands and labels themselves who would find themselves with a reasonably cheap way to promote themselves.
I'd give them a few K of my dosh.
Why would the labels support a website when YouTube already exists and the contracts they are signing will give them a share of the ad revenue. It just doesn't make business sense to go with anything else and Google knows that, which is why they are able to put independents over a barrel like this.
The reason everyone wants to use YouTube is that it has become the one-stop-shop for the great unwashed for music and videos, everything else might as well not exist.
If collectively they are as big as a major, then there is evidence of scale of demand. There are a lot of people with twatloads of cash who would claim to support the music industry, there's kickstarter, there's a huge base of fairly affluent middle-class fans of independent music, there are the likes of Bandcamp who are already doing things in that space. It's not an insane suggestion that they should tell Google to sling it, and make their own arrangements.
Independent music has been telling 'the man' where to go for as long as there's been a man to tell.
I thought the point was that they CAN'T do that, because Google will just allow world+dog to upload "unofficial" versions ("first and fast"):
"Once you cannot upload your official versions, then you are dealing with endless crappy, low quality lyrics videos that are often monetized by someone else if not policed properly. And, usage patterns show that everyone goes to those videos if the official video isn’t uploaded fast and first."
Read the article, at least!
> They do not have to sign.
And indeed they are not signing. What's your point?
> They could do their own music video site if they wanted.
Did you not read the article? Google (having successfully persuade far too many governments to reverse the principle of copyright law) refuse to take down illegal content unless forced, and forcing them costs more money than the independents have. So, even if they did create a convincing competitor to Youtube, their legal content would be competing with Google's illegal content. Which would make monetising it fucking difficult, to say the least.
> Amazingly, this is exactly Big Music's old argument of "Imma being robbed blind by the Interwebs" from the 90s, just with different actors.
Not quite. The music establishment refused to acknowledge that their technological monopoly had ended, and so did not only fight illegal downloads but also fiercely resisted any suggestion that they themselves might create legal downloads, on the grounds that a legal download was too easy to copy and distribute illegally. So they unwittingly actively helped create the market for illegal downloads by refusing to provide a legal alternative -- until Apple came along.
In today's argument, the only thing the labels are doing that helps create the illegal market is charging anything at all for their products. They're not trying to restrict the types of media which their product may be released; they're just asking to be paid.
> reverse the principle of copyright law
Google have not reversed copyright law. It has always been the case that it is up to the rights holders to enforce their rights, not a third party.
Google publishes content and makes the assumption that those publishing it have the rights to do so.
As for the content ID system it has numerous problems. It has far to many false positives and it puts the burden of proof (that it isn't infringing) on those with the fewest resources - namely you and me. It also allows content providers to hijack ad revenue from legitimate uninfringing content.
> It has always been the case that it is up to the rights holders to enforce their rights, not a third party.
It's impressive the job Google have done of persuading people of this -- and, indeed, of persuading people to regard them as a third party. As I pointed out in another thread, try asking Harper Collins to publish Casino Royale under your name and see how far you get. They won't just go ahead and publish it and wait till Ian Fleming's estate ask them to stop; they will assume that the onus is on them not to breach copyright. Because it is.
> try asking Harper Collins to publish Casino Royale under your name and see how far you get.
Completely different. Casino Royale is a well known work so Harper Collins wont publish it.
Try instead digging out an obscure book that sold ten copies and ask Harper Collins to publish it. Or try including a couple pages from Casino Royale in your book. They will not search through the millions of works in print to see if it is a copy, instead they will publish it. It doesn't even have to be obscure, it only has to be a book the Harper Collins editors/proof readers, involved in your book, are not familiar with. They will make the assumption that you have the appropriate rights to the material.
> Completely different. Casino Royale is a well known work so Harper Collins wont publish it.
> Try instead digging out an obscure book that sold ten copies and ask Harper Collins to publish it.
Yes, there are cases where it is difficult for a publisher to detect copyright infringement, and I for one don't expect Google to somehow know whether the amusing cat video uploaded by Barry from Wolverhampton is really his to upload or was in fact nicked by Barry off his brother-in-law Dave's phone. However, you might have noticed that one of the indie artists involved in this spat is Adele. That's Adele, one of the biggest selling artists on the planet, who's done a Bond theme, whose face would be recognised by at least a billion people. So can you explain why you think her output is "completely different" from "well known work"?
A publisher like Harper Collins will have at least one person read a book before it is published. Google do not have that luxury so if somebody posts a song by "Adele" google does not know if it is a 3 year singing "Happy Birthday To You"* or Adele singing "Rolling in the Deep". If Adele, or the owner of Ian Flemmings copyrights, bring the infringement to the attention of Google, or Harper Collins, then they have to take action. It is the rights holders responsibility to protect their rights.
* The 3 year old would be infringing copyright since the copyright on "Happy Birthday To You" does not expire until 2030 in the USA and 2017 in the EU even though it first appeared in print over 100 years ago.
> A publisher like Harper Collins will have at least one person read a book before it is published. Google do not have that luxury
Luxury? What are you on about? It's not a luxury; it's a choice. All this boils down to is "Oo, it's very inconvenient for us to obey the law because Internet, so you need to let us off." One of the reasons Google is swimming in money is that they figured out that, where other companies were having to spend lots of money on all that tedious obeying-the-law crap, it was far cheaper to run a massive propaganda campaign to persuade people that obeying laws wasn't necessary for Google. They like to portray themselves as being in this unfortunate situation of it just being so damn difficult to follow the same laws and regulations as other companies because how can you possibly police gazillions of users, but, in fact, that should be their problem, not anyone else's. Imagine, for instance, that the BBC were to set up a system where you could upload your own videos and they'd be broadcast automatically on BBC3 (hey, anything would be an improvement). Would they just leave it unpoliced, wait for the shit to hit the fan, and then claim that the various broadcasting anti-obscenity laws didn't apply to them on this occasion because they can't possibly police users? No, obviously not: they would simply be expected by the law to police their users and would be punished if they didn't.
These contracts, though, put the lie to even Google's pretence: it's clear that they love monetizing their own refusal to police their users:
Under the terms of the published version of the contract, indies must promise not only to never sue Google - under a “Covenant Not To Sue” - but give immunity to punters who continue to upload the label's own material to YouTube's massively popular video service.
That's not "Oh dear, if only we could police our users"; that's "We will do whatever we can to stop even you policing our users for us."
Besides, as I said above, I have some sympathy for the genuinely difficult-to-enforce cases. Music videos aren't one of them. It would be a piece of piss to let every record label or artist have a unique login and refuse to allow any videos labelled "NEW ROLLING IN THE DEEP VIDEO WITH LYRICS" to be uploaded by anyone other than adelepavements1. But Google refuse to do so.
Finally, let's remember that Google did not build Youtube; they bought it, knowing full well that this very thing was a problem, as lots of people pointed out to them at the time. They have not ended up in this situation through misfortune; they have deliberately manoeuvred their way into it. Fuck 'em.
So you seriously believe that google should watch and listen to every video before its published? Do you have any idea on how much is published every day?
> "Oo, it's very inconvenient for us to obey the law because Internet, so you need to let us off."
They obey the law. If they are notified of copyright infringement they take it down.
> Imagine, for instance, that the BBC were to set up a system where you could upload your own videos and they'd be broadcast automatically on BBC3
Complete bollocks as an analogy as the BBC can broadcast, at most, 24 hours worth any given day whereas google can have hundreds of thousands of hours worth uploaded. Vetting 24 hours worth is trivial. Broadcast content also comes under different rules and regulations to internet content and this alone would prevent the BBC from doing this.
> These contracts, though, put the lie to even Google's pretence: it's clear that they love monetizing their own refusal to police their users:
Wanting to make money out of content and being required by law to vet the content are two entirely different things.
That interpretation of the covenant not to sue clause is simply wrong. The covenant exists for the term of the contract, not forever. They only agree not to sue users for infringing rights that they have already granted to google. Google will also make their content identification system available to them,
> refuse to allow any videos labelled "NEW ROLLING IN THE DEEP VIDEO WITH LYRICS"
Why should they refuse it? There are numerous videos on google with "Rolling in the Deep" in the title that are parodies of Adele's version. Why should google block these artists from publishing their own work just because it is a parody of Adele's song? Why should Adele get priority over these artists?
Google are not required by law to hunt down copyright infringement and block it, it is up to the copyright holders to protect their copyrights.
> So you seriously believe that google should watch and listen to every video before its published?
No, I believe that how Google identify copyright infringement should be Google's problem. Companies develop tech with legal problems all the time. Solving the legal problems is their responsibility. It's a shame when some small business gets screwed by excessive red tape, but this is the opposite: a case of one of the world's biggest businesses foisting their red tape onto much smaller businesses.
> They obey the law. If they are notified of copyright infringement they take it down.
They obey the law that they successfully lobbied governments to write. Which is my point.
> Complete bollocks as an analogy as the BBC can broadcast, at most, 24 hours worth any given day whereas google can have hundreds of thousands of hours worth uploaded.
Since the BBC have a website and media player, I'm not convinced that's true. But that wasn't my point anyway. My point is that a broadcaster, when developing new technologies and business plans, will incorporate the question "How do we obey the law?" into their planning. Google instead ask "The law is inconvenient to our business plan. How do we get it changed?" There's been quite a lot of coverage on El Reg of their ideological infiltration of the Intellectual Property Office. Have you not read it?
> google can have hundreds of thousands of hours worth uploaded. Vetting 24 hours worth is trivial.
Again, if Google's business plan is inconvenient to them, that is Google's problem. But I don't think you're following your own logic here. If it's impossible for Google to police Youtube, it is also impossible for any other firm to do it. And, in fact, thanks to Google's lobbying, copyright owners aren't just expected to police Youtube but to police the entire Internet. Your argument is that Google shouldn't be required to do something because it's too difficult, but you're simultaneously arguing that everyone else should therefore be required to do something even more difficult. All that boils down to is "Google's business plan trumps everyone else's." Why should it?
> Broadcast content also comes under different rules and regulations to internet content and this alone would prevent the BBC from doing this.
What? You're saying the BBC wouldn't do certain things even if they could due to their understanding that the law trumps their business plan? Why, yes, you're right. Are you even listening to yourself?
> Google will also make their content identification system available to them
Which is it? Is it technologically impossible for Google to vet content or do they have a content identification system?
Hey, even if they don't, they could buy Shazam. Identifying songs automatically isn't even new tech any more.
> Why should they refuse it? There are numerous videos on google with "Rolling in the Deep" in the title that are parodies of Adele's version. Why should google block these artists from publishing their own work just because it is a parody of Adele's song? Why should Adele get priority over these artists?
The example I gave didn't just have "Rolling in the Deep" somewhere in the title; it was clearly titled to imply that it's the real original song. How about a pop-up message saying "The title you have provided is that of a copyright work owned by someone else. If your video is a parody, please start its title with the words "Parody of"."? Since "ROLLING IN THE DEEP BY ADELE" generates far more ad revenue than "PARODY OF ROLLING IN THE DEEP WITH ADDED SQUIRRELS" and no-one clicks on the latter hoping for the former, that would pretty much solve the problem.
> Google are not required by law to hunt down copyright infringement and block it, it is up to the copyright holders to protect their copyrights.
Look, this all started with the books. Before Google did it, it was unequivocally illegal for you to scan a copy of Consider Phlebas and put it online. Neither Iain Banks nor his publishers were obliged to police the entire Internet and track you down and ask you to stop. Google then decided to scan every book they could get their hands on just because they could. This wasn't a case of third-party users uploading books to a Google server; Google were doing it themselves. They could have opted to spend a bit of money on checking the copyright status of each book -- hey, it's easy: it's printed on page one. But that was inconvenient to them, not because it was prohibitively difficult, but because they didn't want to acknowledge that they knew full well that their plan was plainly illegal. This was the point at which they announced their lovely scheme of "Hey, don't worry: if you see that we're breaking the law, just tell us, and we'll stop. But only if you tell us. In writing. Don't be evil, now!" It is sad that they successfully persuaded government and law enforcement to go along with this farce, and it's sad that they've now persuaded people like you that that's the way it's always been. And now they've persuaded you that it has to be that way because policing Youtube is difficult.
Here's a thing. If I make a load of knock-off copies of OK Computer and sell them down the market, is it Radiohead's responsibility to find me and ask me to stop, or will the police arrest me if they see me?
It has always been the case (even pre-internet) that it is up to the rights holders to enforce their rights. Even in the case of books. Content providers (eg. book publishers) have a duty to act upon infringement that is brought to their attention by the rights holders.
Lets pretend Adele has written a follow-on song called Barrelling In The Chasm (BITCH) and the notorious pirate Squander One Baddie (SOB) is going to pirate it.
Scenario 1: BITCH is released on DVD and SOB uploads it to YouTube. Adele can sue SOB. The contract with Google allows it since Adele has not yet granted Google the rights to host BITCH.
Scenario 2: BITCH is released on YouTube by Adele and SOB also uploads it to YouTube. Adele has granted Google the rights to host BITCH so under the contract terms can not sue SOB. She can, however, inform Google of the copyright infringement and Google will take it down.
Scenario 3: Adele enters BITCH into Google's Content Identification system, which is free under the terms of the contract. BITCH is released (DVD or YouTube) and SOB uploads it to YouTube. YouTube will now automatically do whatever it is that Adele has told it to do via the Content Identification System. This could be: add a copyright notice to the start of the uploaded video, block the uploaded video, divert the ad revenue stream to Adele, ignore it etc. The decision as to what to do is Adele's as the rights holder, not Google's.
In all of the above it is Adele who pursues and protects her copyrights, not Google. All Google have done is provide her with the tools.
> Here's a thing. If I make a load of knock-off copies of OK Computer and sell them down the market, is it Radiohead's responsibility to find me and ask me to stop, or will the police arrest me if they see me?
Will the police arrest you or the owner of the market that you are using to sell the magazines?
Is you you, who copied it, or the owner of the market, who let you run a stall, who is infringing?
Should the owner of the market be required to inspect everything that the stall holders are selling before they sell it?
> It has always been the case (even pre-internet) that it is up to the rights holders to enforce their rights. Even in the case of books.
I suggest you talk to an author. They will be able to describe to you the massive pain in their arse that is now a regular feature of their life and barely existed pre-Google.
> Will the police arrest you or the owner of the market that you are using to sell the magazines?
Er, firstly, you do know OK Computer isn't a magazine, right?
That aside, it depends. If the market is a known den of illegal goods and the police come to suspect that the market owner knows about all the illegal activity and is not taking any measures to try to discourage it, or is even encouraging it, then yes, they will try to build a case against them and arrest them.
Oh, look! Google's business plan is built on monetizing illegal content, and they know that, and they pour resources into resisting attempts to get them to discourage it.
> I suggest you talk to an author. They will be able to describe to you the massive pain in their arse that is now a regular feature of their life and barely existed pre-Google.
Google makes it easier for the author to publish their works and get it distributed. This ease of use also means the author might have to do more work in protecting his work. Swings and roundabouts. No gain without pain etc etc.
> If the market is a known den of illegal goods and the police come to suspect that the market owner knows about all the illegal activity and is not taking any measures to try to discourage it, or is even encouraging it, then yes, they will try to build a case against them and arrest them.
So you mean if the market owner didn't ban people who repeatedly offended, didn't provide ways of reporting the illegal activity and didn't have 99% of the other stall holders behaving perfectly legally then the police might try and build a case? Sounds like Google is in the clear then.
So you mean if the market owner didn't ban people who repeatedly offended, didn't provide ways of reporting the illegal activity and didn't have 99% of the other stall holders behaving perfectly legally then the police might try and build a case? Sounds like Google is in the clear then.
What he is saying is that an entity that is structured in a way to support illegal activity instead of making it clear from the outset that that isn't tolerated could indeed be considered complicit in that activity and get thus rightly in trouble with law enforcement. And, to be frank, I personally think Google is well beyond the point where it can say "oops, that's not what we intended" - from everything I have seen so far (and that includes how they treat people's right to privacy), Google seems to operate on the principle that as long as it gets away with something it can claim it is legal, and as soon as it gets called to pay attention to the law it prefer to roll out lobbyists and try every kind of blackmail it can think of to get from underneath compliance. But actually following laws seems not to be part of the business model - "fuck society and its rules, give us the money" seems to be the prevailing attitude.
As far as I'm concerned, Google got out of control quite a while back. They are presently competing with tobacco companies and Monsanto for the top slot of global evilness, but they are much slicker going about it, partly because they actually control the information you can gather.
> Google makes it easier for the author to publish their works and get it distributed. This ease of use also means the author might have to do more work in protecting his work.
What complete bollocks. Here's a description of the process by the great Michael Marshall Smith. I started reading his books before Google were invented, so I hardly think they've made it easier for him to get published.
WTF does that have to do with anything?
Are you trying to say that Google is evil because a site called ebookr.com ripped off your favourite author and Google did nothing about it?
Are you trying to say that Google should have issued a take down notice on behalf of MMS?
Are you trying to say that an author having to send an email with details of the infringement is far to onerous a task for them to do?
Can't you read or something? What I've pointed out, repeatedly and correctly, is that Google lobbied hard for the DMCA to be worded the way it is, and that the DMCA makes life very easy for copyright infringers and much harder for copyright owners.
> Are you trying to say that an author having to send an email with details of the infringement is far to onerous a task for them to do?
The onerosity of the task is surely something to be judged by the author. However, what you have repeatedly claimed is that there has been no change, that the principle of copyright law is exactly the same as it's always been. The fact is, MMS didn't have to do this before, and now he does. And so do other authors. That is what we in the reality trade call a "change".
> However, what you have repeatedly claimed is that there has been no change, that the principle of copyright law is exactly the same as it's always been.
What I have repeatedly claimed is that the onus has always been on the copyright holder to assert their rights, not on any third party to assert them for them. The DMCA has not changed this.
> the DMCA makes life very easy for copyright infringers and much harder for copyright owners.
> The fact is, MMS didn't have to do this before, and now he does. And so do other authors.
Pre DMCA the copyright holder would have to go to a lawyer who then goes to a court and obtains a court order instructing the site to remove the offending material. The site could appeal and leave the material up while the appeal is heard. It was expensive, cumbersome and time consuming.
Post DMCA the author sends an email. The site must take down the content even if it appeals.
Hmm, I can see how the DMCA has made life so difficult.
> Google lobbied hard for the DMCA to be worded the way it is
Google was founded September 4, 1998 and the DMCA was passed October 12, 1998 which gave Google precisely 38 days to lobby. Prior to that it existed as a research project at Stanford University in California. I doubt they had either the time or resources to lobby for anything in 1998.
One of the reasons Google is swimming in money is that they figured out that, where other companies were having to spend lots of money on all that tedious obeying-the-law crap, it was far cheaper to run a massive propaganda campaign to persuade people that obeying laws wasn't necessary for Google. They like to portray themselves as being in this unfortunate situation of it just being so damn difficult to follow the same laws and regulations as other companies because how can you possibly police gazillions of users, but, in fact, that should be their problem, not anyone else's.
Well formulated.
Either get pushed around by a major label or pushed around by Google and all the other streaming and distribution companies...
That is on top of the problem of indie music where you have to differentiate yourself from all the bland hipster crap out there also labeling themselves as 'Indie'. I've heard quite a few good ones, but have been overwhelmed by the sheer number of terrible bands.
"That is on top of the problem of music where you have to differentiate yourself from all the bland crap out there. I've heard quite a few good bands, but have been overwhelmed by the sheer number of terrible bands."
There FTFY.
"Indie" doesn't have a monopoly on pretentious bands/fans or on bad bands either.
"That is on top of the problem of music where you have to differentiate yourself from all the bland crap out there. I've heard quite a few good bands, but have been overwhelmed by the sheer number of terrible bands."
This problem extends to classical music as well, although it's usually the fault of the conductors rather than the bands (one can easily forgive some performance lapses if the interpretation is alive and vibrant).
Never ceases to amaze me that the same piece of music can be electrifying in the hands of one conductor and totally lifeless in another's (and others can encompass either extreme, depending on their mood - looking at you, Karajan).
Lots of people wanting to make music and very few people being able to create attention for that music. Supply and demand.
The only way to get rid if that is to stop making music. Or be so good that everybody wants to listen to you so you can be The Man.
"We thought record companies were bad -- indeed, they were bad "
The real badness was moderated by a bunch of legal actions 50+ years ago.
Google isn't as bad as the labels used to be, but it needs to be slapped into shape by the FTC and EU equivalents.
"Must suck to be an musician in these days...
Either get pushed around by a major label or pushed around by Google and all the other streaming and distribution companies..."
On the plus side, at least they aren't writing software for a living.
Did you not get the memo about putting the coversheet on the TPS reports? :'(
Agree entirely. 'Indie' is a word I associate with a bit of 'take-me-or-leave-me-anti-establishment-notquiteintune' as a genre. As such "It's a contract so bad that you would never sign it in normal circumstances. But Google has a gun to your head," doesn't sound very 'indie' to me. It sounds like indie-principles, me-too revenues.
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Actually, I can never recall it being a better time, as an aging indie musician for the past 25 years or so.
Really affordable high quality digital recording equipment / software enabling you to produce way higher quality recordings than would have been possible back in the old days (and at a tiny fraction of the cost it was then). A fairly thriving small pub / bar venue scene to play live in. Of course, I've never done it for the money, but playing live generally tends to pay enough to cover the costs of maintaining a band. And it's so much fun that it's well worth the effort. As I posted a few days ago, the indies should just tell them where to stick it and set up their own service (and cater for unsigned stuff too with fair terms and coditions). It would soon catch on and get the support of most big music fans.
BTW, I never ever got paid for singles I played on or co-wrote songs for back in the old days - the business side of small labels was often very shabby, but hey. I got to make records (and get up to all sorts of other fun too)
In theory Google has a content ID system that could block the unlicensed uploads - but nobody can compel it to use the system
Huh? Is that a claim that Google is not taking down videos through Content ID?? That I remember, most of the complaints about that system is overflagging videos for content that should be in the public domain, or is not even owned by the claiming entity. I have never heard of content producers complaining that the Content ID system is not working… And God knows they know how to complain when they feel like it.
Sorry, this is FUD.
Content ID is not just for the big 3 who have a special arrangement. If you'll remember, one of the famous cases of over-flagging was a NASA video removed because some outfit called Scripps Local News was claiming to own the copyright. They're not in the big 3 of anything.
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