Copyright Tyranny

NOTE: This article is my personal opinion. I know it is controversial. Most importantly, I want to be extremely clear that I do not begrudge Google or YouTube for their policies. They have to protect themselves legally. My statements regard the unfortunate situation that arises.

The title of this article might be a little over the top but it conveys my beliefs on the topic.

I received an e-mail yesterday while I was having curry for lunch with a client. YouTube had disabled one of my videos from revenue sharing. The e-mail was extremely vague and did not list the specific reason why I was losing the privilege of getting 3 cents if someone managed to click on an ad in the video. Instead, they listed a couple of possible nebulous reasons as to why it was disabled:

Dear Nitrocosm,

Thanks for submitting your video Song: Saulsburg Jazz for revenue sharing. We have disabled revenue sharing on this video for one of the following reasons:

You have not provided adequate documentation that you have the necessary rights to commercially use all the video material and music, or we have determined that the content is not advertiser-friendly.

Note that YouTube might disable revenue sharing for accounts that have repeatedly not been able to prove commercial usage rights for videos submitted for revenue sharing. If you would like to disable revenue sharing on your videos you may opt-them out by logging into your YouTube account and visiting http://www.youtube.com/my_videos.

My video, "Saulsburg Jazz" was not taken down; it was merely disabled from revenue sharing. Still, I wanted to know why. The threat in the e-mail said my account might be entirely disabled from revenue sharing for repeat "offenses".

The first point I should make is that the video in question is a song that I wrote, composed, and recorded myself. The song is available on this web site and it is copyrighted by me.

YouTube does not provide an e-mail address or phone number (that I could find) in order to contact a human being to resolve the issue. I scanned their help section and found some forums where many, many other users had experienced the same issue. Their videos, which were in no way in violation of copyright, were disabled because they had not provided adequate documentation.

So, what is "adequate" documentation? I searched a bit more and found some videos that were posted to guide YouTube "partners" (something I am not due to lack of popularity and views).

According to the guidelines videos, all music created using software (what isn't produced using software these days?) has to be cleared for revenue sharing by jumping through the following hoops:

1. Finding all end user license agreements (EULA) for all software used in making the song
2. Locating the clause in the EULA for each program that specifically grants the licensee ownership of all music he or she creates using the software
3. Some kind of proof that the creator owns the song melody, composition, and arrangement

I have exactly two synths that specifically grant me permission in the EULA to use the sounds they produce in my songs. My hardware synths have no such clause and I have yet to find the clause in the EULA for most of my other software.

Does any artist truly own the music they create? If the sounds and methods used to create the music become a licensing / permissions issue, how far can this issue go? I'm not talking about using samples of other complete works. I'm specifically talking about the instrument sounds, whether sampled or produced using algorithms, being clear and legal for the artist who paid for the right to own and use a copy of a piece of software or physical hardware to produce original music.

If one must obtain express written consent to use instrument sounds, does this mean someone playing an actual grand piano has to get permission from the piano's manufacturer? How about someone playing a Gibson guitar? Does Gibson own the sounds created by the performer's efforts? Let's take it further... would not only the instrument manufacturer own rights to the songs their customers create but the manufacturers of the strings / parts of that instrument as well?

Would, barring express legal permission, the manufacturers of the raw materials used to produce the instruments (i.e. steel, plastic, and electronics manufacturers) have the rights to songs ultimately created from their products?

The chain leads up to large companies, who can afford high-priced lawyers to tilt the license agreements largely in their favor, to take any and all rights away from the individual.

Music recording software, instruments, and synthesizers are worthless if they cannot be legally used to create complete musical works in which the artists or production companies are able to take full and certain ownership.

YouTube, which is owned by Google, is making a virtually impossible demand by asking such a tedious, often impossible, task of independent musicians.

Large record companies have the money and lawyers required to assert full ownership of their intellectual property. Individuals are unable to do so under these conditions.

YouTube is not entirely to blame. Although it is irresponsible to disable videos or penalize an artist's account while offering no manner of recourse or counter-claims, they are protecting themselves from increased pressure from large record companies and the RIAA whose actions are increasingly anti-competitive and anti-individual.

This brings me to the reason why I titled this article "Copyright Tyranny". Copyright law and the theat of litigation has become so draconian and over-reaching that all intellectual property is now highly dangerous to everyone but the largest media owners.

YouTube and its parent company Google have permitted countless blatantly copyright-infringing videos to remain on its servers for a long time. Google runs ads, although not for revenue-sharing, on pages that display copyright-infringing and profits from such content even if they do not do so (officially) knowingly. Realistically, a very large amount of YouTube's traffic is to view copyright-infringing videos and one could argue that both the public and Google realizes this fact.

Even so, while Google is diligent in removing copyright-infringing content very quickly, much illegal content remains there, displaying ads. It isn't realistic to expect Google to police YouTube perfectly and I don't begrudge them for failing to do so. I don't have a problem with them obeying the over-reaching DMCA to protect themselves from massive lawsuits.

At the same time, independent artists are taking a big hit from YouTube's over-abundance of caution. Videos that are very clearly original, perfectly legal, and authorized are the targets of the most scrutiny on the site while infringing content still proliferates. While the takedowns are only for revenue-sharing, this could very quickly change to complete video takedowns and even entire channels being removed for even the slightest question of ownership.

I still like Google. Their motto, "don't be evil" is sort of a joke as all companies are evil from time to time, often by necessity. They have to bend to the will of evil interests just to stay in business. I might be considered a bit evil, in some ways. Google is an innovative company that helps drive our economy. They had to be evil in this case, nevertheless.

Under YouTube's guidelines, it is impossible for most independent artists to provide adequate documentation that proves beyond, not only a reasonable doubt, but a paranoid and unreasonable doubt of ownership. The RIAA and other large organizations working for the major record labels have managed to build such an enormous legal threat that only their licensed materials are free and clear for themselves to publish.

Independent artists, if we continue in this direction, will be unable to distribute or publish their materials anywhere for fear that they cannot provide all documentation required to prove that they do, in fact, own their own music and other media materials. We are being crushed.

In closing, copyright is used today for more than the protection of intellectual property. It is used as an anti-competitive measure in an attempt to remove individuals and small, independent labels from the marketplace of media.