[A2k] New York Times: As Rights Clash on YouTube, Some Music Vanishes

[Thiru Balasubramaniam]

http://www.nytimes.com/2009/03/23/business/media/23warner.html?8dpc

March 23, 2009
As Rights Clash on YouTube, Some Music Vanishes
By TIM ARANGO

In early December, Juliet Weybret, a high school sophomore and
aspiring rock star from Lodi, Calif., recorded a video of herself
playing the piano and singing =93Winter Wonderland,=94 and she posted it
on YouTube.

Weeks later, she received an e-mail message from YouTube: her video
was being removed =93as a result of a third-party notification by the
Warner Music Group,=94 which owns the copyright to the Christmas carol.

Hers is not an isolated case. Countless other amateurs have been
ensnared in a dispute between Warner Music and YouTube, which is owned
by Google. The conflict centers on how much Warner should be paid for
the use of its copyrighted works =97 its music videos =97 but has grown to
include other material produced by amateurs that may also run afoul of
copyright law.

=93Thousands of videos disappeared,=94 said Fred von Lohmann, staff lawyer
for the Electronic Frontier Foundation, an Internet civil liberties
group that asked affected YouTube users to contact it. =93Either they
turned off the audio, or they pulled the video.=94

A spokesman for Warner Music said that YouTube=92s system for
identifying copyrighted material does not distinguish between
professionally made music videos and amateur material that may include
copyrighted works.

=93We and our artists share the user community=92s frustration when
content is unavailable. YouTube generates revenues from content posted
by fans, which typically requires licenses from rights holders. Under
the current process, we make YouTube aware of WMG content. Their
content ID tool then takes down all unlicensed tracks, regardless of
how they are used,=94 said Will Tanous, a spokesman for Warner Music.

In addition to Ms. Weybret=92s video, family home videos that included a
portion of a song playing in the background have been removed, as have
any number of videos that use music in goofy ways, from montages to
mash-ups.

When a man posted a video of himself using music to teach sign
language, the audio was switched off because he lacked the proper
copyright clearance to use Foreigner=92s 1980s song =93Waiting for a Girl
Like You.=94

More broadly, however, the takedown notices are a glaring example of
the rising tensions between Internet sites that distribute content
free and owners of copyrighted material.

In late December, Warner and YouTube failed to agree to terms on a new
licensing deal that would have paid Warner a cut of advertising
revenue in exchange for permission to stream the music company=92s
videos. Warner then began having its music videos removed from
YouTube. The site has licensing deals with the other major music
companies, and had a deal with Warner for two years before the recent
impasse.

The situation with Warner has created a double-barreled risk for
YouTube. Professionally produced music videos are some of its most-
watched material =97 six of the top 10 most popular videos of all time
are music videos, and the most-watched video ever on YouTube is not a
bulldog on a skateboard, but an Avril Lavigne video, with more than
117 million views. (The skateboarding bulldog, by contrast, has almost
6.8 million views.)

YouTube more recently began blocking music videos from all companies
from its site in Britain after failing to reach terms with PRS for
Music, a group that collects royalties on behalf of singers and
songwriters.

Keeping a steady supply of music videos on its site is important to
YouTube=92s effort to increase the flow of advertising dollars. At the
same time, the site=92s cachet relies on being a place where users like
Ms. Weybret can freely display their own material. Google does not
disclose advertising revenue for YouTube, and estimates among analysts
range widely, from $200 million to $500 million a year.

Ms. Weybret says she has been hesitant lately to use YouTube as an
outlet for her musical talents. =93I=92m kind of nervous now about putting
up covers,=94 said Ms. Weybret, 15, who plays in a band with her friends
called the Knockouts.

The question for the two sides is, who will users blame =97 YouTube or
the record label, in this case Warner?

=93I feel like the public=92s perception of the record labels is so
hostile that YouTube will be able to deflect any complaints,=94 said
Phil Leigh, a new media analyst who runs Inside Digital Media, a
consulting firm.

Chris Dale, a spokesman for YouTube, said, =93While we work with music
labels to keep music on the site, sometimes our negotiations don=92t pan
out, and we understand that this can be a big disappointment to our
community.=94

Mr. Dale said that YouTube offers users the chance to dispute a
copyright claim, or use a feature of the site to swap in a new track
to replace the offending song.

The situation has raised anew questions about the meaning of fair use
under copyright law in the context of the digital age, when anyone can
easily excerpt copyrighted works and distribute the result in a manner
that is sometimes hard to identify as being a commercial product.

Last year Dustin McLean, who works as an animator on Current TV=92s
comedy show =93Super News,=94 posted a video of A-Ha=92s 1980s hit =93Take =
On
Me.=94 But it was Mr. McLean singing, not the real lyrics but about what
was actually happening in the video. He got two million views in three
months, and a new genre was born, called =93literal videos.=94

=93It was just a silly idea,=94 he said. When the video was removed, he
said, =93fans started e-mailing me and asking, =91why did you take down
your video?=92=94

His videos can now been seen on funnyordie.com or his own site,
dustfilms.com, and so far he has been free from the copyright police.

The law provides a four-point test for the fair use of copyrighted
works, taking into account things like the purpose, the size of an
excerpt and the effect the use might have on the commercial value of
the actual work.

The body of law is ever-evolving, and each era and technology seems to
force new interpretations. In the 1960s, for example, the Zapruder
film, the home movie that captured the Kennedy assassination, was
bought and copyrighted by Time magazine. But a judge denied that it
could be a copyrighted work because of its value to the public interest.

Many of the offending videos of the user-generated variety like Ms.
Weybret=92s =97 as opposed to copies of music videos produced by Warner
and its artists =97 would fall under fair use, according to Mr. von
Lohmann, because they are noncommercial and include original material
produced by the user.

Others, including Warner Music=92s lawyers, might argue that the videos,
while themselves created for noncommercial purposes, are nevertheless
being shown on YouTube, which is a moneymaking enterprise.

Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los
Angeles who has worked on antipiracy at the 20th Century Fox movie
studio, said, =93From her perspective it=92s completely noncommercial
because she=92s not making a dime. But from another perspective it=92s
entirely commercial because Google is trying to make money off it.=94

Users have the right to dispute a takedown. But few have.

=93People are somewhat intimidated by the possibility of being sued by
one of the music companies, even if they have a free lawyer, like us,=94
Mr. von Lohmann said.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997