Copyright Remains A Complete Mess: A Tale In Two Stories
Here are two separate stories regarding the mess that is modern copyright law, that is now mostly mediated" by companies that half-ass randomly deal with things and sometimes do not. While this is, perhaps, a better setup than stupidly suing kids for daring to like or share a song, it still suggests the entire copyright framework of today is broken. Both stories involve experts in copyright law finding that the system sucks, even when you know the system.
Story One: The Extra-legal Takedown Game is Rigged
The first story comes from Michael Weinberg, the Executive Director at the Engelberg Center on Innovation Law & Policy at NYU. The center is home to multiple copyright law professors and experts who do some amazing work.
Way back in 2019, the center had a symposium on Proving IP," featuring two musicologist experts (who were on opposing sides in this case), talking about about the musicology aspects of the infamous Blurred Lines" case. As the Engelberg Center explains:
The primary purpose of the panel was to have these two musical experts explain to the largely legal audience how they analyze and explain songs in copyright litigation. The panel opened with each expert giving a presentation about how they approach song analysis. These presentations included short clips of songs, both in their popular recorded version and versions stripped down to focus on specific musical elements.
After the symposium, the center (reasonably) posted the video to YouTube and the audio on its podcast feed. Back in 2019, soon after it was posted, Universal Music filed a strike on the YouTube video, because that's just how Universal Music rolls (even if the company should know better). Eventually, the Center was able to get the video reinstated, but only after Universal Music stood its ground saying the video was infringing, and the Center resorted to using backchannels to reach people at YouTube to say hey, what the fuck...?"
However, never underestimate the fuckery that Universal Music can get up to with a copyright takedown system. Last fall, four years after this event had been posted on the Center's podcast feed, Spotify removed the podcast, again claiming it was due to copyright infringement on Universal's work. The Center responded the initial copyright claim, by noting that it was clearly fair use. After receiving a confirmation (and, smartly, the Center took a screenshot), Spotify still chose to take the podcast down (falsely) claiming that the Center had not responded to the original notification.
Now, in some ways, the fact that Spotify asked for a response from the Center before taking it down is a baby step of progress. Many services immediately take stuff down and ask questions later. A notice and notice" system is much more reasonable, but I guess it only woks if the company reads the response notices.
When they complained, Spotify told them they had to sort things out directly with Universal Music. The Center - again full of copyright experts - realized it needed to see the details of whatever notice UMG had provided Spotify. If it was an actual DMCA 512 takedown notice, they could try to file a 512(f) claim back against Universal (again, Universal has been sued over this before and, in theory, knows it's supposed to take fair use into account).
But, Spotify wouldn't even tell them the nature of the notice. Was it a DMCA? Was it Spotify's own audio matching service? No one knows. No one's willing to say.
On October 12th, Spotify told us that in order to have our podcast episode reinstated we would need to work things out with UMG directly. That same day, we asked for UMG's actual takedown notice so we could do just that.
We did not hear anything back. So we asked again on October 23rd.
And on October 26th.
And on October 31st.
On November 7th - 26 days after our episode was removed from the service - we asked again. This time, we sent our email to the same infringement-claim-response@ email address we had been attempting to correspond with the entire time, and added legal@. On November 9th, we finally received a response.
Apparently, cc'ing legal" gets results.
Spotify's email stated that our episode was not yet subject to a legal claim," and that if we wanted to reinstate our episode we needed to reply with:
- An explanation of why we had the right to post the content, and
- A written statement that we had a good faith belief that the episode was removed or disabled as a result of mistake or misidentification
This second element is noteworthy because it matches the language in Section 512(f) mentioned above.
We responded with a detailed explanation of the nature of the episode and the use of the clips, asserting that the material in question is protected by fair use and was removed or disabled as a result of a mistake (describing the removal as a mistake" is fairly generous to UMG, but we decided to use the options Spotify presented to us).
Our response ended with another request for more information about the nature of the takedown notice itself. That request specifically asked if the notice was a formal notice under the DMCA, and explained that we were asking because we were considering our options under 512(f).
Spotify quickly replied that the episode would be eligible for reinstatement. In response to our question about the notice, they repeated that no legal claim has been made by any third-party against your podcast." No legal claim" felt a bit vague, so we responded once again with a request for clarification about the nature of the complaint. The next day we finally received a straightforward answer to our question: The rightsholder did not file a formal DMCA complaint."
In other words, it wasn't a DMCA, it was just Spotify's own systems (its version of ContentID or whatever) that made a match. The Center's key takeaways were that this system, where online service providers (under tremendous pressure from rightsholders) set up these kinds of outside-the-legal-process tools to takedown content, users are pretty much left with no recourse, and they're likely to get screwed:
What did we learn from this process?
First, that Spotify has set up an extra-legal system that allows rightsholders to remove podcast episodes. This system does a very bad job of evaluating possible fair uses of songs, which probably means it removes episodes that make legitimate use of third party content. We are not aware of any penalties for rightsholders who target fair uses for removal, and the system does not provide us with a way to pursue penalties ourselves.
Second, like our experience with YouTube, it highlights how challenging it can be for regular users to dispute allegations of infringement by large rightsholders. Spotify lost our original response to the takedown request, and then ignored multiple emails over multiple weeks attempting to resolve the situation. During this time, our episode was not available on their platform. The Engelberg Center had an extraordinarily high level of interest in pursuing this issue, and legal confidence in our position that would have cost an average podcaster tens of thousands of dollars to develop. That cannot be what is required to challenge the removal of a podcast episode.
Third, it highlights the weakness of what may be an automated content matching system. These systems can only determine if an episode includes a clip from a song in their database. They cannot determine if the use requires permission from a rightsholder. If a platform is going to deploy these types of systems at scale, they should have an obligation to support a non-automated process of challenging their assessment when they incorrectly identify a use as infringing.
Story 2: The system is just as broken for actual victims of infringement
The second story also comes via a internet law / copyright law professor, David Post (whom we've quoted many times on Techdirt). It turns out that on the side, Post (as a hobby) plays folk music with another lawyer and friend, Craig Blackwell in a band called Bad Dog. They're really good! You can listen to their music on SoundCloud (turns out there are a few other bands out there called Bad Dog, but that link takes you to the right one).
They recorded this album and uploaded the tracks to SoundCloud last year. And then, they decided to get a small run of CDs made using Disc Makers. But, Disc Makers alerted them they wouldn't press the CD, because a computerized check found that the music was found all over the internet where it was claimed by other artists.
The NY Times eventually wrote an article about the whole mess. It appears that once they uploaded their songs to SoundCloud, someone came in, grabbed all the tracks, and uploaded them everywhere else (YouTube, Spotify, Apple Music, etc.) but put it under totally different names.
But not long after The Jukebox of Regret" was finished in July and posted on SoundCloud, nearly every song on it somehow turned up on Spotify, Apple Music, YouTube and at least a dozen other streaming platforms. This might have counted as a pleasant surprise, except for a bizarre twist: Each song had a new title, attached to the name of a different artist.
This mysterious switcheroo might have gone unnoticed. But by happenstance, it was discovered when the guy who produced the album posted one of the songs on his studio's Instagram account. To his astonishment, Instagram automatically tagged the song Preston" by Bad Dog as a song called Drunk the Wine" by Vinay Jonge - a musician" with no previous songs and zero profile on the internet. He didn't seem to exist.
The full extent of this heist soon became clear. Pop Song" by Bad Dog had become With Me Tonight" by someone named Kyro Schellen. The Misfit" had become Outlier" by Arend Grootveld. Verona" had become I Told You" by Ferdinand Eising. And so on. Same music, different track names and credited to different artists, none of whom had any other songs or any profile on the web.
Now, in theory, this seems like exactly the sort of scenario where copyright is supposed to help the artist. This is a case where someone was not just making a copy of someone's work, but then uploading it to various other music platforms under totally different names, and pretending it was theirs.
So Post & Blackwell, again, both of whom are (in some ways) deeply familiar with the copyright system as lawyers, tried to make use of these tools and automated systems that are supposed to help protect artists. How do you think it worked out?
To retrieve their songs, Mr. Post and Mr. Blackwell sent out what are called takedown notices, or formal requests to remove pirated music, to a bunch of different sites. The band members used their SoundCloud page to demonstrate that their recordings predated all the uploads on the streaming platforms.
Two sites responded fairly quickly. Amazon Music removed the songs in about a week. YouTube soon followed.
Other platforms offered little more than canned emails. (Your claim will be processed by our team," Spotify replied.) Apple Music sent a form letter, too, though it included a tantalizing clue: the name of the company that had uploaded the songs.
And who do you think was the company that had actually uploaded these songs, violating the copyright of Bad Dog?
Warner Music, of course! The same Warner Music which, at one time, was one of the loudest voices screaming about how copyright law needs to be more draconian, and how sites like YouTube were evil. Now it's Warner Music uploading infringing tracks to help some scammers profit off of musicians' work.
The only thing that got Warner to back down? A call from the NY Times reporter.
On Dec. 5, this reporter emailed the public relations department at Warner. A spokeswoman there looked into the matter and soon after said the songs had been uploaded via a subsidiary called Level, a music distributor catering to independent artists. (Your release, streamlined," the company says on its website.) For a $20 annual fee, Level uploads audio to a long list of digital streaming platforms. It asks only for customers to tick a box and agree to terms of service, which include a promise not to post any audio owned or created by someone else.
Warner moved quickly. On Dec. 6, the company removed all the pirated versions of Bad Dog's songs from all of the sites. (The company would not discuss how.) Soon after, anyone typing Vinay Jonge" into Deezer, the French online music platform, got an error page that read, Oops ... It did it again."
By then, Bad Dog's songs had collectively been played more than 60,000 times on Spotify. The number suggests that the fraudster found a way to generate listens for the song, but not at numbers that would arouse suspicion. At Spotify's rates, all those listens would translate into just over $250.
So, yes, Warner was just acting as a middleman here, but it's kind of incredible how, in just 15 years or so, Warner went from hating YouTube and claiming the whole site was an infringing mess, to being a major source enabling scammers to upload infringing tracks to profit from.
As the article notes, this scam is likely happening a lot, and people just aren't noticing it. It's basically a fluke that Post even realized it was happening with his music, and then the problem was only solved because he was able to get a NY Times reporter to pick up the case.
In both of these stories, though, you quickly see just how broken the copyright system is on both sides of the equation unless you're a giant company. In all of this mess, the record labels (Universal Music and Warner Music) and the streaming companies (Spotify, YouTube, etc.) make out like bandits, and the actual creators get screwed.
But, what are the chances of that ever getting fixed?