Fixing the DMCA by Contract Now and Legislation Later


Labels made deals with @YouTube out of desperation. It's pennies & whack-a-mole. How can labels renew YT deals with so much artist pressure?

-- Irving Azoff (@irvingazoff) June 22, 2016

Irving Azoff asks the right question of the labels that are in renegotiations with YouTube over extending their licenses: Given the global unity against Google's business practices in the creative community, how can record labels or music publishers close a license with Google that does not address Google's outdated notice and shakedown business model? Don't artists and songwriters deserve a modern contract with the most valuable company on the planet?

Which should come first: Fixing the legacy business problems in a contract or a legislative fix? Fixing the problems in a contract seems much more doable, will produce a quicker result and could be a guidepost for any legislative reform to bring the DMCA into the 21st Century. Or if Google refuses to cooperate, artists and songwriters can express their displeasure by refusing to license Google.

This will require negotiators to be prepared to cut off YouTube if necessary should no agreement be reached. As Taylor Swift, Elle Goulding and others have demonstrated, there is a real question about whether YouTube really is all that important to driving sales in the first place.

How Important is YouTube--Really?

I realize it may seem like heresy, but I have yet to see any public consumer behavioral data that demonstrates a repeatable causal connection between YouTube penetration and actual sales outside of YouTube. Particularly when the brand that creates the activity on YouTube was either already widely known before the fact or becomes well known because advertising and marketing campaigns drive awareness on YouTube.

It does make a lot of sense that if anyone owned the one site that is integrated into the marketing plans of every movie, television program, record release and tour, and if all the marketing budgets for all of those enterprises were in part devoted to driving traffic to that one site-it would be hard for it not to succeed, right?

That's YouTube.

So YouTube directly benefits from all those marketing dollars spent to make them successful, and they bear none of that cost.

Google Rejects the Gift Horse

Google does, however, do way more than their share to undermine the value of work to create those movies, TV shows, records, songs and tours. Time for them to stop hiding behind the DMCA. But rather than trying to bring in a global legislative fix as the first step, why not just fix the Google problem through every contract with Google. And as we all know, Google is really the problem here.

Google Taints Other Tech Companies

There is a lot of sense to the idea that the legislative fix may not be as necessary for the reasonable people acting reasonably--if it were not for Google tainting the issue. Google is at the bottom of every DMCA horror story, Google spends millions in legal fees and lobbying to try to preserve their extreme position, and buys off academics and pundits to create an atmosphere for jury nullification. In my view, Google now is in the process of deceiving creators who are dependent on YouTube or MCNs that are dependent on YouTube into thinking that somehow the broader creator community is against them.

If we could fix the Google problem through our contracts with Google, there may actually not be an imminent need to do anything with the DMCA. The problem is Google, not Microsoft nor Amazon nor Spotify nor Huffington Post, nor even Pandora. As Beggars Group Chairman Martin Mills said:

Policing the YouTubes of this world for infringing content is a herculean task, one beyond all but the largest of companies. For my community, the independents, it's a game of whack-a-mole they can only lose.

Here's the point-if we are going to fight with Google anyway however they fake their way through the DMCA, why should we also license to them? Any amount of money they pay to us has to be offset by how much it costs to do the takedown work, the absolute lion's share of which is caused by Google. (93 million takedowns in the last month as of this writing.)

Why Do We Give Google Cover?

So if we have to do the work anyway, let's not compound the problem by letting them get away with harsh practices under our very contracts. Why give them cover?

If you check all the YouTube contracts, they are all with Google, not YouTube. So why should Google be able to get away with mind numbing levels of abuse on the search side of their business but expect us to make nice with them on YouTube?

Why should we let Google taint the DMCA process for every other Internet company or individual website that behaves reasonably?

That certainly seems to be what the artists are saying and they need to get an answer.