We have gotten to the point that the US Government and federal courts are unable to properly police our copyright system. Further, certain aspects of our copyright laws are antiquated, some going back to the 1860's, and do not properly address changes in technology and technology culture. In short, our copyright laws were made for a different time.
This is important for musicians, people in the music-related industries.
Still, because there is so much money and commerce involved, what we are seeing is private companies stepping in to filling the void normally occupied by the government and the federal courts. An example of such a private actor is Jeff Price, and his various companies Audiam.com and previously, tunecore.com. There are many other examples, including YouTube.
To best explain this issue, its useful to look backwards into how YouTube came into existence, and how a large private company (Google) more or less forced a very large change in copyright enforcement, with the US Government welcoming the assistance.
Long ago, before YouTube was acquired by Google, it was predicted that YouTube could not remain a viable business entity because. A key principle that made (early) YouTube attractive to users was its skirting of copyright laws. People could and did post copyrighted content on YouTube, and often suffered nary a penalty. These people, and YouTube, often “piggybacked” on and profited from someone else’s creative efforts.
An early example of this was illustrated when Viacom sued Google over alleged copyright violations. This lawsuit was filed in 2007, but not settled until 2014. At one point Viacom, had been seeking $1 billion in damages from Google. However, no money traded hands in the settlement.
In 2007, the copyright lawsuit looked like it would have major implications for the way the Web worked. As a patent/copyright/trademark attorney, I remember thinking this myself! “OK, that’s the end of that fun”, etc. But by 2014 the core issues have been settled by both the Federal Courts, and the marketplace, specifically YouTube’s skillful innovation of a ContentID tag.
Like many other media companies, Viacom had originally objected to the fact that lots of its content appeared on YouTube without permission. But Google, which acquired YouTube in 2006, has more or less made peace with most big content companies, in part using a “ContentID” system that allows copyright owners to track their stuff on the world’s largest video site.
The system also gives content owners the ability to demand “takedowns” of their stuff — or the option to run ads against it. That is, when a content owner discovers a violation, they can reach the party who posted the material, ask them to run an ad, and both parties can benefit. No “Takedown” occurs, and the situation does not need to be adversarial.
In fact, many providers of e.g. background music, beat tracks, or other support material, now hope that someone is using their material and violating their copyright. With an easy negotiation semi-brokered by Google, each copyright violation can (eventually) mean more money in the pocket! Without using the federal courts. Without using an attorney (which we love)!
In this sense, in a lot of important ways, Google is acting as a de-facto Court system, but hugely more efficient and more marketplace-centric. Amazon is also doing something like this for Trademarks, doing important work that the Federal Courts simply cannot get to. This will be the subject of a separate article, too difficult to briefly explain here.
This is an amicable solution in which all parties profit, and people stay out of the Federal Courts. As an attorney who does not like other attorneys, I prefer this system. This arrangement has also enabled companies to step in to help Google "police the Internet" of copyright violations, and protect content providers, musicians, and other parties in the music-related industries. As stated, examples include are companies like Audiam.com and tunecore.com
These companies take YouTube’s ContentID system referred to above, and add to it. They also protect people against false Takedown notices by YouTube. Unfortunately, YouTube sometimes notifies (apparent) violators they are posting copyrighted materials which are in breach of YouTube's user agreements, even when they are the creators and owners of that material.
This is an example of harnessing Google’s creativity and inspiration to build the regulatory systems of the digital age, rewarding for-profit and nonprofit innovators who can come up with better regulatory tools.
It is my position, as a patent/trademark/copyright attorney, that the present solution is better for users, viewers, content providers, and even large media companies. Although there are still abuses, leaving the federal Courts to resolve this alone, by themselves would not have worked. Further, while YouTube’s beginnings may have been built on copyright violations, YouTube is now the #1 music destination site on the planet for music discovery and search. Further, YouTube also enables and facilitates the end-customer not just listening to music, but also “using” that music in various contexts that in some ways benefit the original artist.
This editorial is coming from someone who worked as an attorney in the Department of Commerce, and saw what happens when the Federal Government and Courts are the sole parties responsible for resolving complex intellectual property disputes, including small businesses with limited budgets. The result was often a big mess.
There are things the federal government and courts are good at, and things it shouldn’t be doing, and can’t do.
Digital services like YouTube, and everyone else that distributes lots of content uploaded by its users are not responsible for copyright violations if they don’t explicitly encourage them, and if they let copyright holders take down stuff they don’t want up there. These services are not "publishers" in the traditional sense of the word, and cannot be expected to self-police all the content that is posted. Its hard to clearly define what they are, and they certainly bear a resemblance to publishers. But what we want to avoid is putting them in a position of having to police content (using the word “police” as a verb). These mechanism are not like a newspaper or magazine, where there is a finite set of writers and photographers, a finite amount of space, and a completed, finished document that can be reviewed prior to publication.
Again, if someone has worked with Jeff Price, or one of his companies, we encourage you to contact us here