As recently as 2013, the U.S. Supreme Court declined to hear the appeals of twopeople owing almost a combined $1 million for allegedly downloading and sharing copyrighted music. The cases of Jammie Thomas-Rasset and Joel Tenenbaum were vestiges of a high-profile battle between the record industry and the internet that dated back to Metallica's crushing 2000 lawsuit against online music-sharing O.G. Napster. In the court of public opinion, such debates tended to pit an aged, clueless industry against internet-connected music lovers tired of having to buy an $18 CD to hear that one kinda decent Fastball song.
Much has changed. What the narrative of money-hungry corporations versus innocent fans inevitably leaves out is the existence of a not entirely disinterested third party: the technology industry. Companies such as Google, founded a year before Napster in 1998, have benefited society in countless ways—and profited handsomely from it. At the same time, their music-loving users have blogged the occasional Rapidshare link, or (gasp!) uploaded copyrighted songs to YouTube. The primary law meant to establish a necessary balance between the competing interests of copyright owners and Silicon Valley is 1998's Digital Millennium Copyright Act, or DMCA. I'll pause here to let the similarly named Village People jam get stuck in your head.
Last week, hundreds of artists, songwriters, and others in the music business signedletterscallingon Washington to change parts of the DMCA. Including current acts ranging from Arcade Fire and Neko Case to Katy Perry and Mark Ronson as well as icons like Pete Townshend and Bootsy Collins, this eclectic assemblage spoke as one about the need to revamp the law's "safe harbor" provision. What the safe harbor basically does is shield digital services from copyright infringement liability for content posted by their users, so long as there's a process in place to take down the content at the copyright owner's request. The music business has for years contended that the safe harbor provision puts an unfairly heavy burden on artists. But now these industry heavyweights are ramping up the fight, essentially saying that the safe harbor provisions—DMCA Section 512, to get technical—are "outdated" and "don't work."
The record companies have a point. American music industry revenues have stayed mostly flat since 2010 and overall have fallen about 50 percent since the DMCA became law, according to the RIAA, the trade group representing the major labels. Free streaming via sites like YouTube has grown faster than the revenues generated from it, which shockingly trailed vinyl sales last year, the RIAA said. "The growth and support of technology companies should not be at the expense of artists and songwriters," reads one letter signed by a range of music A-listers. As signees Fifth Harmony might put it, baby, they're worth it.
But of course, Silicon Valley isn't taking these missives lying down. The Computer & Communications Industry Association, another trade group, told Bloomberg that the music industry can't back its claims that the safe harbor is sucking up revenues. The Internet Association, a trade group whose members include Facebook and Google, also praised Section 512, notes The Hollywood Reporter. "These smart laws allow people to post content that they have created on platforms—such as videos, reviews, pictures, and text," the association wrote. "In essence, this is what makes the internet great."
But the internet is a vastly different place than it was when DMCA became law in 1998. The U.S. Copyright Office, which prompted all these letters with a request for public comment on Section 512, noted that back then less than 5 percent of the world's population was online. Websites were static, clunky dial-up connections were standard, and social networks, let alone smartphones, were still a long ways off. As for search engines, Google dates to the same year as this law, which was signed by President Bill Clinton. "The DMCA has now become a dysfunctional relic, not suited to the realities of the 21st century," reads a 97-page brief signed by 18 separate music organizations, including not only the RIAA but also A2IM, a trade group that represents indie labels.
Google recently told Billboard it had reviewed more than 80 million takedown requests in the past month alone. To the record industry, however, that's another sign the safe harbor measures are obsolete. "There is no evidence that Congress anticipated that Google or any service provider would receive and be required to respond to more than 1 billion takedown notices," the brief adds, comparing the notice-and-takedown system to "bailing out an ocean with a teaspoon."
The dramatic expansion of the internet means it's now possible to hear just about any song for free within seconds via the device in your hand, but who gets paid for our easy access to "Hotline Bling" meme videos is a matter of heated debate. Google's parent corporation, Alphabet, is now worth more than $500 billion. The MusicFIRST Coalition, a lobbying alliance made up of record labels and artists, recently noted that Alphabet cited YouTube advertising dollars as a driver of its $21.33 billion in 2015 fourth-quarter revenue. YouTube alone generates estimated annual revenue of $4 billion to $8 billion, The New York Times reports. By comparison, music industry revenue from on-demand, ad-supported services like YouTube totaled $385 million last year, per the RIAA.
Google responded to the latest RIAA revenue figures by noting that it has paid out more than $3 billion to the music industry, as The Verge reports. Google reps argued that, of course, there's more to YouTube than music, and that its new YouTube Music app could generate still more revenue for artists and the music industry. "Past comparisons to other audio-only, subscription music services," Google said, "are apples to oranges."
Another key aspect of Google’s defense is something that those who have been on the wrong end of a DMCA takedown notice can speak to: The risk of wrongful takedowns runs high. A recent academic study found that almost 30 percent of takedown requests that Google received were of questionable validity, a data point worth noting despite Google's funding the research. Which is to say, care must be taken with whatever might replace the current safe harbor provisions, because reporting copyright infringement in an internet this vast is undoubtedly tricky.
Still, it's becoming harder and harder to see why U.S. law should put the burden of policing copyright infringement on, say, letter signee Tom Waits instead of some of the biggest companies in the world. That is generally what the music industry is arguing. "A law that might have made sense in 1998 is now not only obsolete but actually harmful," reads the brief. It's also important to emphasize just what a broad range of the music industry this effort represents: Bruce Springsteen's manager Jon Landau and Taylor Swift's Big Machine label head Scott Borchetta from the management side, big organizations such as ASCAP and BMI, and artists as varied as Bonnie Raitt, David Byrne, Ronnie Spector of the Ronettes, Elvis Costello, Garth Brooks, Mick Fleetwood of Fleetwood Mac, Bruno Mars, Lionel Richie, deadmau5, Cyndi Lauper, Pearl Jam, Kenny "Babyface" Edmonds, Christina Aguilera, and on and on and on.
As for what might potentially replace the safe harbor provision, the details aren't entirely clear. The U.S. Copyright Office has singled out "the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public," as well as the debate over how to treat a "repeat infringer." The office, a division of the U.S. Library of Congress, will hold public roundtables on the Section 512 issue next month in New York and California. What's next ultimately depends on Congress. But that's a whole other sad song.
In the meantime, the music world has spoken almost as one, which we don’t have to tell you is rare. This time the target isn't hapless file-sharers, but companies that may benefit from how the safe harbor provision removes their liability for the music that people share. The industry's brief mentions other lawsuits, ones that seem eons removed from the days of Metallica's beef with Napster. For instance, last April the free streaming site Grooveshark, which once boasted 35 million users and Mercedes-Benz ads, said it was shutting down after a court ruled it had violated the safe harbor provisions.
"In that case, the court found that Grooveshark had created a 'technological Pez dispenser' that required copyright owners to submit 'successive takedown notices' in order to remove a single sound recording from the service," the 18 record industry groups wrote in the brief. "This type of brazen work-around of the DMCA by Grooveshark and other rogue actors of the DMCA devalues music and suppresses the legitimate market for it."
"Information wants to be free," but "information also wants to be expensive," Whole Earth founder Stewart Brand said in a quote from 1987 that I often go back to. "That tension will not go away." It may be time for the balance to be reset. How much should a technological Pez dispenser be worth?