Quick thread on what today's @senjudiciary hearing on Notice and Takedown in the DMCA is about. (1/?)
We often say that musicians typically need 2 basic things: the ability to reach audiences (in ways that make sense for them) and the ability to be fairly/sustainably compensated when their work is used.
Musicians and composers typically work with a variety of business partners in pursuit of those two goals. Those partners can include digital services that host user-generated content. Ideally, a digital service can help creators make their work available and help them earn money.
It doesn't always work out that way, though, and part of the reason is leverage--which individual creators often lack. You might also call this "worker power" vs "buyer power". Platforms with lots of "buyer power" can control the terms by which musicians can access markets.
The ideal situation is to have lots and lots of potential partners offering a range of business models and tools that make it possible for creators with wildly different business models to reach audiences in ways that make sense for them.
In music, there've historically been a lot of problems with gatekeeper dynamics which have presented barriers to audiences unless you agree to gatekeepers' bad terms. That's taken the form of bad contract provisions, or distribution bottlenecks, or payola at AM/FM radio.
One of the ways that musicians have tried to get around gatekeeper dynamics in the past is through encouraging competition. Sometimes competition just means "creating a more equitable alternative" or even just a new option that works better.
This is the historical origin of the independent music movement--which predated the internet. If the systems that existed created barriers to participation, barriers to audiences, you could try and build something else.
As the internet became central to our cultural life, it offered both promise and peril. The promise was more competition--easier communication between creators and listeners--no more limited shelf space, new tools suited for different kinds of communities.
The peril was unauthorized reproduction creating a downward pressure on the value of recorded music. Unauthorized reproduction had existed a long time via bootlegs--what was new was the potential for it to scale, and to become a business model.
The Digital Millennium Copyright Act was written in part to address this. It included a sort of bargain meant to align incentives: digital services wouldn't be held liable for copyright infringement committed by users if the services abided by certain standards.
It created a process where if a copyright owner submitted a "notice" of infringement to a platform, the platform would have an obligation to "take down" the infringing material. It included provisions for a counternotice process to protect uploaders' expressive rights as well.
This allowed for new services to get off the ground, some of which have been very helpful for reaching audiences and earning revenue. But it hasn't always worked as designed.
In part, the volume of infringement outpaced what small artists or rightsholders could keep up with. Who has time to spend all day trying to address work getting uploaded over and over again? It's a new category of uncompensated labor that artists are compelled to perform.
It's also important to understand that not every service has a massive infringement problem. Services can be designed to minimize infringement and help users understand what they can and can't legally do.
There's a section of the DMCA: (512)(i) that was meant to create "standard technical measures" to make it easier to deal with problems at scale, and make tools available on a neutral and non-discriminatory basis. But that's never been implemented.
What's happened instead is that some services have made their own proprietary anti-infringement systems. YouTube's is called "Content ID." But it's not made available on a neutral/nondiscriminatory basis.
Effectively, smaller artists and rightsholders don't have effective control over their work, and many have argued that this has interfered both with their ability to earn a living, and limited the ways in which they can reach audiences.
The biggest music companies can at least leverage the size and value of their music catalogs to negotiate some improved terms and concessions, including more complete access to anti-infringement tools. Individual artists don't have that leverage.
Smaller video creators have frustrations too--about copyright claims and takedowns that are fraudulent or over-reaching, and some of these can be substantive. YouTube's system is built to work for YouTube first, and YouTube's most valuable partners second.
Is this a small thing to complain about? Consider how dominant YouTube is. By one estimate, 46% of all on-demand music streaming by play time. This is where we come back to the concern about gatekeeper power.
YouTube leverages its dominant position and the widespread presence of infringing material on its service to achieve terms far below what any competing interactive service pays for music. And it creates a barrier to entry that makes competing music services harder to launch.
To the extent that some artists may find Spotify's rates or terms frustrating, part of the responsibility lies with YouTube: when Spotify negotiates rates, they can always point to YouTube's rates as being much worse.
So: how do we fix this? The Copyright Office studied the issue and finally released its report last month, concluding that the system is out of balance and recommending some targeted fixes, but stopping short of the most ambitious reforms.
Any changes to the DMCA have to be made with careful attention to implications for free expression and open communication. We can't afford to be dismissive of the real technical challenges, but neither should we accept notions that improvements are impossible.
We also have to distinguish between good-faith concerns and ideological arguments that are designed to sabotage any progress before it happens.
Anyway, that's what's being discussed today, at 2:30 EST. You can watch here. judiciary.senate.gov/meetings/is-th…
There's an element to these sort of hearings that can feel theatrical. Some senators find it important to include famous people on the panel, hence: Don Henley (no disrespect to Mr. Henley, who's done very important work) but the issue's not really about celebrities.
