YouTube Music: Streaming Around The Law

n November, Google became an even more formidable player in the music streaming market by launching two new services: YouTube Red—an ad-free subscription service—and YouTube Music, an audio-focused version of the YouTube app. With Google’s global audience, YouTube’s movement into the streaming industry is bad news for other giants like SoundCloud, Spotify, and Apple Music. While services like Apple Music and Spotify boast huge catalogs of songs, these industry-focused platforms lack the mixtapes, remixes, and user-submitted tracks that make SoundCloud and YouTube popular. Relying on user-submitted content since the start, YouTube has evolved into a unique position that gives Google far more flexibility with copyright laws than other services. Google blatantly has an advantage –especially when comparing YouTube’s success with the downfall of SoundCloud. YouTube’s massive market share has created a situation where Google is practically immune from the dangers posed by copyright infringement, giving Google an advantage over competing music services. Looking at Sound Furthermore, as a video and music platform, YouTube’s ad-free subscription provides value beyond music alone, offering customers an irreplaceable, commercial-free experience on the world’s most popular video platform as well. If YouTube is going to enter the music streaming space legitimately, Google needs to follow the same rules as its competitors.

For $9.99 a month, YouTube Red lets customers enjoy an ad-free YouTube experience while also giving users access to the Google Play Music catalog. In a one-two punch combination, Google launched YouTube Music shortly after Red, allowing users to stream audio-only versions of videos and explore music more intuitively. With a subscription to YouTube Red (there’s a 14-day free trial for users who download YouTube Music), listeners can use the YouTube Music app to save songs for offline listening, play content in the background on mobile, and stream audio-only versions of videos. For users who already rely on YouTube to fit their streaming needs, audio-only mode is a crucial development. Reducing unnecessary data consumption is essential for customers with expensive cellphone plans, and removing video from streams will save heavy YouTube users many GBs of data per month. Users can still use YouTube Music without paying for  YouTube Red, but the free version of YouTube Music does not allow consumers to use other applications while music is playing, limiting the usefulness of the service.

Copyright Advantages

YouTube’s relationship with the music industry should be more alarming for competing streaming services than the duel-threat of ad-free videos and music. YouTube rose to power in the Wild Wild West of the internet-entertainment industry. The early 2000s were the time of “Web 2.0.” Rather than simply consuming content, users were invited to contribute and create content for the web. The 1998 Digital Millennium Copyright Act created preventative measure for handling potential internet-copyright issues, but no one was truly prepared for what would happen. Early user-content platforms like Break, YouTube, and Ebaum’s World practically relied on infringing material to grow. The Online Copyright Infringement Liability Limitation Act provided companies with safe harbor provisions that created the “take down notices” that consumers see today. But with no precedents set for how to handle these disputes on user-submitted content platforms, it was often impractical to take down infringing material. Beyond the lack of takedown measures, content creators were also enjoying the promotional power that YouTube offered. The “viral” sensation was constantly creating overnight success stories for the television and music industries, so handling infringing material was more complicated than simply removing everything. The entertainment industry’s apathy towards infringing content quickly changed, however. After Google acquired YouTube, the video faced countless lawsuits. Most notable among these was Viacom International, Inc. v. YouTube, Incwhich argued that YouTube was not adequately preventing copyright infringement before being settled out of court.

This new wave of accountability had even further ramifications with regards to how YouTube handled music. Primarily a video service, YouTube is positioned differently than the rest of the music streaming industry. To fully understand the situation, one should acquaint oneself with 17 U.S. Code § 106 –Exclusive rights in copyrighted works. The second bullet provides a copyright holder with the right “to prepare derivative works based upon the copyrighted work.” What is a derivative work in the music industry? A remix, a work that uses an audio recording (sample), audio-visual syncs (music videos, music in a film, music in a video game). As a video website, every “song” is technically a video. A strict interpretation of what constitutes a derivative work would require YouTube to pay for sync licenses, which could end up becoming extremely expensive. This predicament makes the audio-visual aspect of derivative works a glaring issue for YouTube.

Every song on YouTube seems to satisfy this criteria of “audio-visual” at the term’s surface. Most songs are accompanied by album art, lyrics, or pictures, and even if a song does not have any visual aids, it still consists of a black or white box with copyrighted material playing in the background. However, in 1996, Abkco Music Inc Abksco v. Stellar Records Inc defined audio-visual works as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” While this wording might implicate videos with lyrics, it seems to protect YouTube from paying sync licenses for “videos” that are simply meant to be songs.

According to Digital Music News, YouTube accounted for over half of all songs played on popular streaming services in 2014, but only accounted for 13.5% of on-demand song revenue. Since most lawsuits were settled out of court, public information surrounding YouTube’s deal with record labels is scarce. The RIAA’s recent discontent with Google’s takedown notice system can provide some insight though. A blog post on the official RIAA website delves into the record industry’s specific grievances. While most of these takedown issues surround Google as a search engine, YouTube is still implicated as a subsidiary. Google claims that the sheer amount of DMCA takedown notices makes processing requests difficult –even with automated systems in place.

Google is not wrong to claim that an automated process is not enough to accurately process all DMCA takedown notices. Fair use provisions make YouTube a viable platform, protecting videos that engage copyrighted material in a legal fashion. YouTube has every right to make sure its contributors do not face improper takedown requests, but that presents a challenge for the music industry, which requires quick takedown responses to ensure that songs do not leak. Furthermore, services like SoundCloud prove that automated systems should be able to handle music industry copyright disputes.

SoundCloud’s negotiations with the record industry crippled the service’s viability. SoundCloud was great because users could upload anything: remixes, samples, DJ mixes, albums, etc. But in order to grow, SoundCloud had to become legitimate, which meant respecting copyright laws. Since SoundCloud’s negotiation with major labels, the streaming service has received overwhelmingly negative press. Automated takedowns and account suspensions have prompted outcry from the very users who gave SoundCloud its initial value. This platform no longer embodies that “Wild Wild West” attitude that made it great, but that seems to be a legal reality for user-submitted streaming services.

SoundCloud’s sorry condition makes YouTube’s approach to music extremely confusing. If YouTube Music is a legal streaming option, why are there five videos for one song? Why does YouTube allow users to upload copyrighted songs? If SoundCloud’s automated system can prevent copyright infringement, surely YouTube can weed out user-submitted material that violates these same restrictions. Despite SoundCloud’s demise, Google continues to finesse the system due to its dominance of the music streaming market. Using the large volume of takedown notices to excuse takedown delays, Google and YouTube hold an unfair advantage over the rest of the streaming industry.

As seen in The Documentary 2.5

For a recent example of this phenomenon, let’s look at The Game’s The Documentary 2.5. Specifically the track “Magnus Carlsen,” which originally contained a sample of Stevie Wonder’s “Rocket Man.” Since The Documentary 2.5’s original release in October, the sample in “Magnus Carlsen” has been replaced with an original beat. Today, if one listens to “Magnus Carlsen” on Apple MusicAmazon, or Spotify, the Stevie Wonder sample is no longer present. SoundCloud does not have any version of the track. While this minor copyright problem has not been addressed by other websites, it certainly proves that Apple Music, Amazon, SoundCloud, and Spotify respond to copyright issues in a timely fashion.

(As a personal anecdote, I had added “Magnus Carlsen” to my library with Apple Music in early November, but after a short while, the track became unplayable for over a week. When the track became playable again, the Stevie Wonder sample had been replaced).

However, despite every other service taking down “Magnus Carlsen” with a Stevie Wonder sample, YouTube remains defiant. A quick search of the video giant yields numerous results with the original version of the track. Somehow these videos evade YouTube’s automated takedown measures, and this is not an isolated incident.

D.R.A.M.’s “Cha Cha” faced a similar copyright issue. Due to an uncleared sample, D.R.A.M. had to redistribute “Cha Cha” with a new beat. Yet once again, a quick YouTube search reveals the original song. Some user-submitted uploads stretch out the duration of songs or add silences in order to avoid automatic content detection, but both of these examples—“Magnus Carlsen” and “Cha Cha”—retain the proper song length and BPM. The original version of “Cha Cha” also has 38,000+ views on YouTube, meaning Google is collecting revenue from works that violate U.S. copyright law.

YouTube can circumvent the copyright expectations of other music streaming services for now. Google’s dominant web presence provides leverage unmatched even by Apple. The ramifications of getting on Google’s bad side can mean millions of lost views for artists and labels, and consumer-dependence on Google services requires the record labels to play along. Rampantly removing infringing material can often hurt growth rather than promote sales, so record labels need to approach copyright claims intelligently. However, with the release of YouTube Music, the video giant’s streaming culture may have to change fundamentally. YouTube Music cannot become a legal and viable replacement for streaming services like Rdio, Apple Music, and Spotify if it continues to neglect issues like sound quality and copyright. It is unacceptable to have five user-submitted versions of a song when a consumer is expecting one official upload.

Legitimizing

As a colleague of mine pointed out, YouTube has already started to roll out an automated, official-upload process. A quick glance at The Weeknd’s “Acquainted” reveals that the uploader is “#TheWeeknd,” and that the song is “Provided to YouTube by Universal Music Group International… [and] Auto-generated by YouTube.” This track proves that YouTube is implementing procedures to create official artist pages, just as services like Spotify do. Looking at #TheWeeknd’s channel, all uploads appear official, with playlists organized according to The Weeknd’s discography.

If YouTube continues to mimic the features of a professional music streaming service, the video giant will have to respect copyright like its competitors. What made YouTube great for music is that it still retained aspects of the internet’s “Wild Wild West” while becoming a legitimate company. If a consumer wants to find a mixtape or a song that has been taken down elsewhere, he or she can likely find the track on YouTube. Google’s video service is great for listeners because it seems to perpetually hold out against the music industry’s copyright complaints. Uncleared samples and unofficial uploads plague YouTube at this point. They are ingrained in the culture of the service.

At first glance, YouTube’s approach to copyright law is great for consumers, allowing users to access songs unavailable on any other streaming platform, but if YouTube can continue to get away with rampant copyright infringement, the company will gain a huge advantage in a small, competitive market. YouTube already commands a majority of music streams in terms of pure plays, and adoption for YouTube music will be quick and easy due to its integration with regular Google accounts. However, if YouTube wants to enter the music streaming market legitimately, Google needs to play by the rules.  The cost of licensing vast catalogs already creates a huge barrier for entry for services that may try to compete with streaming giants, and giving Google an illegal advantage will only decrease competition. If YouTube Music continues to ignore copyright infringement while legitimizing its music services, Google will become the best value for a $9.99 monthly subscription. Ad free music and videos with the benefit of “exclusive” material outweighs the value of any existing music service. Things will have to change if YouTube continues to take over the music market, and that probably means even stricter content removal across Google services.

This article originally appeared on nheller.com.

Alex Oka