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Content ID’s Closed-Door Controversy

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There’s continuing controversy over YouTube’s Content ID rights management platform. You might think I’m talking about content creators complaining about video takedowns for music violations. But I’m actually referring to the growing number of artists demanding direct access to the Content ID tools.

Here’s a quick overview of Content ID from the artist’s perspective: a song submitted to YouTube’s Content ID system is available to creators for use in videos without extra permissions. Content ID will auto-magically identify when songs in its library appear in YouTube videos. The artist (or other rights-holder) can then elect to block the video, monetize the song’s placement in the video (via advertising), or forgo either action by ‘white-listing’ the video. Most of the songs in a major label’s catalog and many independents are a part of this Content ID library.

The problem is that artists and labels can only access these tools through a YouTube-approved third party. This party is usually someone like AdRev or a distributor like Symphonic. As expected, in the monetization option, the third parties will take a cut of any income. Some artists find a mandatory reliance on a third party aggravating, especially when giving up a share of the money is unavoidable.

There is a lawsuit against YouTube filed by artist Maria Schneider and the company Pirate Monitor to challenge this requirement, arguing that Content ID should open up direct access to anyone. The brunt of the argument rests on the challenges of those who can’t utilize Content ID. That is, if a song used in a video is not in YouTube’s system, the reporting and takedown process is inadequate and ineffective. In that case, the artist or label would manually ‘flag’ the video and wait for YouTube to take action. As you can imagine, it’s not an effective process.

YouTube argues that Schneider is not affected by any deficiencies in its approach, as reported in Complete Music Update. She uses a third party already, says YouTube, so she’s an example that the tools are readily available to anyone. Pirate Monitor also has its issues: 

As for Pirate Monitor, YouTube is more scathing about its involvement in the lawsuit. The counterclaim makes various allegations about the conduct of the anti-piracy firm, concluding that that conduct demonstrates why Content ID access is not available to all. It accuses Pirate Monitor of setting up various anonymous accounts on YouTube, uploading snippets of films controlled by its clients, and then issuing takedown requests against those uploads.

Perhaps, but one could look at Pirate Monitor’s alleged actions as to why Content ID should be more widely available. It’s become another system that encourages ‘gaming’ from those left out of its tools. 

You probably know my opinion. The point isn’t that Schneider has the access — it’s that she’s beholden to a third party to get it. With that in mind, I’d say an artist who licenses music under Creative Commons has a better case. 

I’ve written previously about Kevin MacLeod, a musician who allows free use of his music in anyone’s videos.1This strategy has paid off as MacLeod has gotten quite a few paid music gigs based on the widespread appearance of his music. A third party will not represent him because he doesn’t want to make money off YouTube placements — there’s no income and no cut. But, he needs the protection Content ID provides. MacLeod has run into others downloading his music and illegitimately submitting it to a service like AdRev without his knowledge. The videos with MacLeod’s songs are then monetized against his will with the income going to some shadowy figure. 

There’s little that MacLeod and others like him can do when this happens. They can’t access Content ID, the third parties reject them for representation as there’s no income, and YouTube — as expected from a huge corporation — is slow to respond (if at all). MacLeod eventually got YouTube’s attention, but it took a long time repeatedly pleading with the company. YouTube’s eventual solution? They gave MacLeod direct access to Content ID. It’s that easy — YouTube should find a way to open up Content ID for all. 

An In-Store Music Mystery

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Last month, an episode of the podcast Reply All aired that included a music mystery. Brian, the protagonist, recorded a jazzy version of a Christmas song with his friends, burned a few CDs, and uploaded it to YouTube. After views (and listens) never broke double-digits, he forgot about the song. And then, months later, he hears his song playing over the speakers as he shops in a major grocery store chain.

It’s a fun episode, and you should listen to it before reading any further into this post. I’ll end up spoiling it for you. Here you go:

Interesting, eh? The mystery is unsolved. The first question is: how would anyone get ahold of the song? It’s verified that Brian or his friends did not distribute the song through a service like CD Baby. Someone would need the CD or, more likely, the ability to rip music from YouTube. Next: How did the song get into the grocery store? At first, it’s naïvely thought that an employee played the music, but major stores all use music services like Mood Media (who now own Muzak, which you’ve heard of). This is mostly for licensing and rights purposes — it saves the stores from having to individually clear the rights to play music in a commercial establishment.1This leads to a fascinating discussion in the podcast about how the services select music for in-store play. For example, a song’s tempo should resemble the rate a shopper is pushing a cart down an aisle. Seriously, listen to the podcast if you haven’t. But a service like Mood Media would only acquire music submitted to them. This submission could happen directly or through a distributor like CD Baby.

There’s also an Occam’s razor theory that Brian misheard the music in the store and mistook it for his song. He’s given some entertaining tests to find out how well he can identify music. Brian passes with flying colors — he’s got an exceptional ear.

There are other theories thrown about, like the unlikely idea that the music service is pirating Christmas songs to avoid paying royalties. When you think about it, that’s more trouble than it’s worth — a large company isn’t going to spend time trawling YouTube and ripping songs, and if caught, the penalties and reputational harm would be enormous.

The episode ends with a big shrug. The case of the errant Christmas song remains a mystery. The hosts thought through every possible theory, and each is flat-out wrong or unverifiable. 

But I have a theory. It’s a theory that’s not touched on in the episode. And, if Brian did hear his song, I bet I’m on to something. I wrote the Reply All team to let them know my idea. Here’s what I told them:

My guess is the song was indeed unscrupulously downloaded and put into circulation. But it wasn’t the music supplier who did this. The clue was when the representative asked if the song could be available from an aggregator like CD Baby.

Let me now give you two examples that will help illustrate my theory:

Check out this article about a ‘music artist’ grabbing songs that don’t have many plays, downloading them, and then releasing them as his own (via 5 Magazine). 

And on my blog, I wrote about Kevin MacLeod, who makes music and lets people use it for free in their YouTube videos in exchange for credit. But then someone downloaded his songs and, claiming to be him, registered them with YouTube’s Content ID. This unsavory person was able to monetize the videos that are using Kevin’s music.

So, here’s my theory: Someone is searching YouTube looking for Xmas songs with very low play counts. I’m sure there’s a lot of unreleased, amateur Christmas music on YouTube. And, the lower the play count, the less likely anyone uncovers this scheme. This individual then downloads the songs using a stream-ripper and then collects them into a Christmas ‘album.’ Then this ‘album’ is sent to a service like CD Baby or directly to an in-store music service. The ‘album’ is released under this individual’s name — not Brian’s — to get royalties and payments from places like major grocery store chains for plays.

That said, two factors do *not* support this theory. First, I played the song off the YouTube video for Shazam. A distributor like CD Baby would usually give the music to Shazam’s database. When I tried Shazam, it either could not identify the song or misidentified it. (There was one version of the same song that Shazam suggested that had a very similar piano style, but no drums or sax.)

Another factor is YouTube’s Content ID, as mentioned above. Like Shazam, most distributors would make their aggregated music available to Content ID. If that were the case, Brian’s original video would get flagged.

But we could be dealing with someone who does this kind of thing *a lot* and knows what they are doing. Some distributors will let the artist tell them which outlets to supply music to and which to exclude. I would guess CD Baby and Distrokid offer this option. So, if the individual who ripped this music is explicitly targeting in-store play outlets and the royalties from those, the distributor could be told only to give the music to in-store play music suppliers. In other words, no Spotify, no Shazam, no Content ID. Thus, there’s even less chance to discover this scheme.

The individual could also have a direct account with the in-store music supplier, bypassing normal distribution channels (and thus also Shazam and Content ID). If that’s the case, this person does this a lot — the in-store music services will only deal directly with labels and artists submitting content regularly. 

This secret person could be a ‘professional’ — supplying lots of unreleased holiday music ripped from YouTube, repeatedly played over the season (which, as noted in the podcast episode, is getting longer and longer), and collecting royalties. 

That’s my theory, but I suppose we’ll never know. ¯\_(ツ)_/¯

The Ongoing Collision of Music and Podcasts

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Recently, the co-host of the Geeks and Beats podcast posted the news that Spotify removed all 250 episodes of his show. This inexplicable act was the result of a takedown request from Universal Music, caused by an allegation of copyright infringement. The notice, sent by Spotify, did not specify what triggered the complaint, so the show’s host doesn’t know how to respond:

As you can see, we have no idea what’s being contested. All we know is that Geeks&Beats has been kicked off Spotify. And not just for the mysterious offense. All 250+ episodes are gone. Wow. Obviously, though, the sniffing algorithms found something and triggered the takedown. Try appealing to a robot.

It would be great if a copyright identification system for podcasts resembled Content ID on YouTube, where the use of songs is approved and, if desired, monetized. Perhaps that’s on the way. But, Spotify’s present one-strike-and-you’re-toast application of the tool is a problem.

If you recall, SoundExchange and PodcastMusic.com are preparing to launch a music licensing platform for podcasters.1However, I haven’t seen any updates on the launch since August, so I don’t know when this service will finally become available. Drawing upon SoundExchange’s extensive collection of pre-approved masters, the platforms expect labels and artists to set licensing prices for catalog easily, and podcasters to easily obtain those license for their shows. The service will include commercially known songs as the majors come on board.

But how will Spotify’s song-sniffer know that the podcaster acquired a legitimate license from SoundExchange? I don’t see the two platforms ‘talking’ to each other to verify music usage. What I expect to happen: Spotify automatically pulls the podcast down (every episode!). The podcaster disputes the claim with proof of the license, with no idea if she’s sending the correct documentation for the disputed song. And then she waits for the podcast to (hopefully) get reinstated. How long do you think that will take? And if it’s a podcast that regularly uses music from SoundExchange’s licensing platform, then fielding takedown notices could become the podcaster’s part-time job.

The intersection of music and podcasts is more like a collision. It’s a total mess. And the indispensable podcast The Future Of What covers the topic in detail in the latest episode. Listen and feel the frustration of everyone involved.

🔗→ This is how insane music copyright claims have become: Totally. F**cked.
🔗→ Episode #178 : Licensing Music For Podcasts

How Songwriters Got Thrown Into a Minefield

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I’d like to highlight a couple of informative and disconcerting articles about the state of infringement litigation in the wake of the “Blurred Lines” decision. Both pieces are worth a full read.

In The New York Times, Jon Caramanica writes that It’s Got a Great Beat, and You Can File a Lawsuit to It:

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.

The idea that this might be actionable is the new twist. Every song benefits from what preceded it, whether it’s a melodic idea, a lyrical motif, a sung rhythm, a drum texture. A forensic analysis of any song would find all sorts of pre-existing DNA. […]

What’s left in its wake is a climate of fear. In some recent cases, you can sense pre-emptive gamesmanship, as when Taylor Swift gave a writing credit to Right Said Fred for a cadence on “Look What You Made Me Do” that recalled “I’m Too Sexy.” Or the rapid settlement Sam Smith reached with Tom Petty for perceived similarities between “Stay With Me” and “I Won’t Back Down.” Whether there was a direct borrowing didn’t seem to matter; the potential for the perception of theft was enough to instigate an arrangement.

A few years ago, I worked with a songwriter who unexpectedly received a writer’s credit on a previously unheard new song. No one contacted this songwriter beforehand — the credit just suddenly appeared on publishing statements. It turns out the ‘hook’ for the new song was similar to the chorus in a well-known composition the songwriter penned in the ’70s. My songwriter friend didn’t mind and probably wouldn’t have litigated, but was happy with the outcome — the new song ended up a worldwide , resulting in a nice payout.

I’m sure this decision — as is the case with most of these preemptive moves — was made by the label’s legal team. I imagine a group of on-staff musicologists pouring over every potential hit song looking for the vaguest of similarities. The lawyers are alerted of any resemblance and the original writers are proactively paid off with a credit and publishing share. I find this risky as it informs the original writer of the similarity. Even with the credit, I don’t think anything is stopping a writer from claiming copyright infringement, that it’s an unauthorized derivative work. A court might see the publicly acknowledged credit as admission. But of course, payment for essentially doing nothing is appreciated, so why bother with the hassle of going legal, right?

In Rolling Stone, Amy X. Wang explains How Music Copyright Lawsuits Are Scaring Away New Hits:

While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. […] “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” [Katy] Perry’s lawyer Christine Lepera warned in the case’s closing arguments. […]

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” [prodcuer and songwriter Ross]Golan says. “People are using the same sample packs, the same plug-ins, because it’s efficient.”

Instrument plug-ins, to be intuitive and easy to use, tend to push users in creative directions. Certain built-in sounds rise to the top, as do sequences and arpeggiations included in the presets. Though these are sounds and one can’t necessarily be sued for a sound (though it has happened!), the inspiration provided by the built-in options potentially send producers to common destinations. A similar five-note motif using a shared patch or a melodic run from an embedded sequence pattern opens up an incentive to take action. Based on what we’ve seen, it’s uncertain a jury would understand the nuance.

And there are potential problems with services like Splice that offer samples and construction kits used by multiple producers. More than one song can easily feature the same melodic building block, and some sample pack offerings from Splice and other services even include lyrics. If a song based on a Splice melodic loop becomes a hit, what happens to the other songs using the same hook?

With copyright protectors like Content ID, it’s who-gets-there-first when it comes to commercially available sample packs. If there’s more than one song using a sample pack melody, the first applying for Content ID stakes the claim. Other songs using that melody might get flagged. This issue has happened in the past with Apple Loops, as producers discovered if they used specific melodic loops included with Logic Pro, the songs would get blocked by YouTube for infringing an earlier song using the same loop.

Even if a sample isn’t used in its blatant form, or is obscured or twisted in the mix, it likely provides the same inspiration as other producers hearing the same sample. It’s not unrealistic to think similar ideas, melodies, or compositional seeds will result from a shared inspirational foundation. Unless there’s future legal clarification — or the courts decide to rely on experts rather than juries in infringement cases1Manager Lucas Keller says in the Rolling Stone article: “In British court, they’d just ask a musicologist to decide. In American court, we bring in 10 random people.” — paying out ‘damages’ and carving out writing shares will be an expected ritual for composers of hit songs.

Opening Up Content ID for Everyone

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Complete Music Update:

The eight Congress members who wrote to [Google CEO Sundar] Pachai last week acknowledged the benefits of Content ID, writing in their letter that “we appreciate Google’s efforts to combat the illegal distribution of content on YouTube”. However, they then said: “We are concerned that copyright holders with smaller catalogues of works cannot utilise” the copyright tools. […]

Expanding on this point, the Congress members’ letter goes on: “It has come to our attention that access to the Content ID system is only granted to companies that ‘own exclusive rights to a substantial body of original material that is frequently uploaded to the YouTube user community’. We are concerned that copyright holders with smaller catalogues of works cannot utilise Content ID, making it more difficult or impossible for them to effectively protect their copyright works from infringement and, ultimately, impacting their livelihoods”.

I’ve faced this issue as a music publisher. I’d rather directly submit my works to Content ID than through a third-party distributor, especially as many of our tracks are production music and not commercially released. I’ve reached out and received crickets.

YouTube’s requirement that an applicant’s catalog has to be already ‘frequently uploaded to the YouTube user community’ is a head-scratcher. Applicable music should be in the Content ID system in advance. If it takes multiple viral videos to get an acknowledgment from YouTube, then there’s money due to songwriters left on the table.

Prolific music producer Kevin MacLeod brings up another problem in his interview on 2 Girls 1 Podcast. MacLeod lets anyone use his music for free in videos as part of a Creative Commons license. As an independent music creator, he didn’t have direct access to Content ID. And using a third party for Content ID made no sense. Most of his music is not commercially available and, as anyone could use his music — no questions asked — there’s no money to be made on the distribution side.

The dilemma for MacLeod appeared when other people started claiming his music using Content ID through third-party distributors. That’s right — nefarious folks were seeing this unregistered music racking up views on YouTube and took advantage by registering it as their own.

Eventually, after repeated appeals to YouTube, MacLeod was able to work something out and get direct access to Content ID. But only after the nightmare scenario of video creators using his music, trusting there would be no issues, and then having their videos monetized or pulled by an unknown party.

I planned to set up a Creative Commons catalog for non-commercial user-generated content through my publishing company. But MacLeod’s story gives me cold feet. There’s no way I’m allowing our music used on YouTube without an assurance the rights won’t be questioned. Perhaps Google will heed Congress’s concerns and give rights-holders a choice — to use a third party for Content ID or go direct. That’s not so different than how SoundExchange operates. So, file this story under ‘fingers crossed.’

YouTube Grapples with the Short and Unintentional

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Here’s an interesting development in how YouTube handles claims of copyright infringement for the appearance of “very short or unintentional” musical content. Let’s go to TechCrunch:

Going forward, copyright owners will no longer be able to monetize creator videos with very short or unintentional uses of music via YouTube’s “Manual Claiming” tool. Instead, they can choose to prevent the other party from monetizing the video or they can block the content. However, YouTube expects that by removing the option to monetize these sorts of videos themselves, some copyright holders will instead just leave them alone. […]

Creators were also given tools of their own that let them easily remove the clip or replace the infringing content with free-to-use tracks.

The Verge:

Creators on YouTube have increasingly struggled with record labels claiming copyright on their videos when snippets of music appear momentarily in the background, like from the radio of a car passing by. YouTube’s new rules don’t stop these claims from happening, but they attempt to discourage the claims by removing a key incentive for copyright holders: the ability to make money. […]

There are a couple of big caveats to the policy, though. It only applies to “manual” copyright claims — that is, when a record label or other rights holder identifies something that belongs to them and files the violation notice by hand. If a music clip is caught by YouTube’s Content ID system, which scans videos for infringing material, then rights holders will still be able to make money off of the video, regardless of how brief or unintentional the music is.

Complete Music Update:

YouTube also suggests creators make sure that there is no music playing in the background when a video is shot. Even though, in many countries, that would be covered by a copyright exception anyway, meaning no licence should be required. But, of course, rights management tools on user-generated content platforms are still struggling with the ins and outs of copyright exceptions and, in the US, the always ambiguous concept of fair use.

There have been exceptions for music use considered ‘diminutival’ (a fancy word I learned from a lawyer at Podcast Movement in reference to, say, singing a single line from a song in your podcast). And traditionally music that appears in live broadcasts — for example, a news report with a song playing at a business where an interview is taking place — is exempt. Though, in that case, any not-live rebroadcast would need to clear the song. It’s tricky.

In the past, a music rights-holder could claim a song appearing in a video that falls under the category “very short or unintentional” — like a song blasting out of a passing car for a second — and monetize the entire video for herself. In some cases, this claim process makes sense, but, in others, it’s potentially abusive. The Verge notes a popular YouTuber who lost monetization on a prominent video because he quoted a line from Bon Jovi’s “Livin’ On A Prayer.”

YouTube’s new approach is unique. Monetization became an incentive to overindulge in copyright claims, so that option is no longer available for these short uses in manual claims. Instead, the video can be blocked, or its monetization credentials removed for everyone. The video creator has the option to edit the offending song out of a problematic video to reinstitute monetization. It’s important to note that if the Content-ID robot identifies a song, then all bets are off — as before, the rights-holder can claim full monetization without any options to the video creator.

The solution is flawed and, I’m sure, an experiment. The push-back is that any video that incorporates a song becomes a derivative work of the infringing content, no matter the length or context. Thus the work becomes the claim of the infringed rights-holder. I see that point, and the recent EU judgment on Kraftwerk’s metal-on-metal hit shows how diminutive length often doesn’t matter.

But my feeling is that, for now, this is a suitable compromise. The legal boundaries of user-generated content are still under review. Experiments like these will help define how we, as rights-holders, deal with an ‘everyone is a creator’ culture in a way that exercises ownership without discouraging spontaneous homespun creative works.