In the early 1980s when the MPAA was trying to stop Sony from distributing the VCR, Jack Valenti was quoted saying:
I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
We all know that if anything, the VCR only helped the movie industry rather than destroy it. Today, it wouldn’t be much of a leap to assume that the MPAA—along with the RIAA, Viacom, et al—would again compare a new technology—YouTube—to the Boston strangler.
Similar to the initial reaction of the VCR, Viacom and other media corporations are pushing against new trends in content creation and distribution which seems to be creating a strange distance between their original intentions—to promote and profit from the media they produce. For instance, the band OK Go—the one that basically became famous when they released this video on YouTube—recently released a new album with a couple videos. However, this time around the record label disabled the ability for users to embed and share the video on other websites. Due to the popularity and viral quality of the first video fans were curious as to why the same feature that practically made the band famous had now been disabled. Eventually, the band wrote an open letter to the fans explaining the situation, here is an excerpt:
See, here’s the deal. The recordings and the videos we make are owned by a record label, EMI. The label fronts the money for us to make recordings – for this album they paid for us to spend a few months with one of the world’s best producers in a converted barn in Amish country wringing our souls and playing tympani and twiddling knobs – and they put up most of the cash that it takes to distribute and promote our albums, including the costs of pressing CDs, advertising, and making videos. We make our videos ourselves, and we keep them dirt cheap, but still, it all adds up, and it adds up to a great deal more than we have in our bank account, which is why we have a record label in the first place.
Fifteen years ago, when the terms of contracts like ours were dreamt up, a major label could record two cats fighting in a bag and three months later they’d have a hit. No more. People of the world, there has been a revolution. You no longer give a shit what major labels want you to listen to (good job, world!), and you no longer spend money actually buying the music you listen to (perhaps not so good job, world). So the money that used to flow through the music business has slowed to a trickle, and every label, large or small, is scrambling to catch every last drop. You can’t blame them; they need new shoes, just like everybody else. And musicians need them to survive so we can use them as banks. Even bands like us who do most of our own promotion still need them to write checks every once in a while.
It seems odd to me that this would be the label’s solution to the problem. You would think based on the effectiveness of the original video and how widely it was shared the label would embrace this aspect of distribution rather than lock it up. OK Go argues that the reason they do this is because they need to make money via ads which doesn’t happen when the video is embeddable on other websites. However, I would argue that more often than not users watching embedded videos on other websites tend to end up on YouTube at some point within that session anyhow. Furthermore, allowing a video to be embeddable creates an opportunity for exposure via blogs, forums, and other social media. After all, their video for Here it goes again—which was embeddable—had “50 zillion” hits on YouTube so obviously users aren’t abandoning the original source when watching these embedded videos. Ironically, the letter ends with the source code to embed the video through Vimeo which doesn’t make a whole lot of sense to me. Anyone?
In the Viacom v YouTube complaint the main argument is that YouTube was intentionally making it increasingly more difficult for copyright holders to find uploads that infringe on their works because YouTube profits off of the popularity of these works via web advertisements. This claim ultimately led to the implementation of YouTube’s automated ContentID system.
It seems that this system goes completely against Judge Jeremy Fogel ruling that fair use must be considered before take down notices are sent in order to counterbalance misuse. Browsing YouTomb and reviewing Chilling Effects letters from the RIAA shows that these corporations are abusing their power structure to scare users out of what might otherwise be rightfully theirs. Furthermore, I’m curious as to how this algorithm works and how precise it is. What happens when an artist samples a portion of another artist’s song verbatim, legally? Is it possible that this technology would wrongfully take down the artist’s works? This all comes back to the basic principle that these situations are based standards and not rules. Only human beings can assess context and other factors that are less quantitative. Automated processes simply do not work and seem counterproductive to the artists—the group that these laws allegedly protect.
Yale Law Tech 