Barely Legally

Confessions of a Moot Court Bailiff

Don't Be Evil

Google adopted a flippant and kind of passive-aggressive “we’re cooler than Microsoft” slogan around the turn of the millennium: Don’t Be Evil. At the time, they were the underdogs and Microsoft was the Evil Empire. Now it’s 2015 and Google dominates our lives in both the digital and analog world. They are more The Empire than Microsoft ever dreamed. The slightest adjustment or update to any service Google provides will affect… well, lots of folks. Sometimes for the better, and sometimes for the worse. They’re just a really big company.

That’s not intrinsically evil. Google’s sheer size and reach makes certain … unpleasantness pretty much inevitable, but it’s not oppressive. Closing free services in favor of new free ones can’t be evil, right? Come on: their business model of “collect and monetize the personal information of billions of people” is arguably halfway across the Rubicon. Things like killing off beloved RSS reader services pales in comparison, right?

Stream of the Crime

Dear Reader: if, like me, you are slowly coming to terms with the fact that you are Out Of Touch, let’s go over some basics. Firstly, The Kids apparently listen to music on YouTube. A lot. According to one study, a whopping 64% of kids turn first to YouTube when they want to fleek out to some totally bae tunes. (Or not, maybe? We’re about as sure about kids’ habits as I am about their totally fetch vocabulary.)

Where there is demand, and a DMCA-provided safe harbor, there is supply. And so YouTube has lots and lots of music on it. Not music videos: videos with no actual video, just music. Some of it might even be there legally!

After Google bought YouTube (and, incidentally, the latter’s pending billion-dollar lawsuit), the whole operation went legitimate pretty quickly. YouTube created Content ID, a system which automatically scans every video on the site for copyrighted content, and then catalogs those videos so the rightsholder (Disney or Fox or musicians or whatever) can find them.

Enter the Zoë

This is where Zoë Keating, an independent musician, comes in. I mention that she’s not signed to a record label; as we get through her story, remember that she doesn’t have the assistance of a multi-billion dollar media cartel’s legal department. She’s the subject of a comedy law blog post, which is probably at least as helpful as an army of lawyers.

Zoë’s story is fascinating in part because she didn’t choose the ‘Tube life – the ‘Tube life chose her. People were uploading videos with her music to YouTube. That’s where we pick up:

I got started with Content ID a couple of years ago when someone from Youtube reached out to me and I was offered a content management account to “claim” the soundtracks of these videos. The videos are dance performances, documentaries, amateur films, slideshows, animations, art projects, soundtracks to people doing things like skiing, miming, calligraphy or just playing video games. I love the variety of them all.

Here’s how it works: I upload my music and the Content ID robot identifies matches.[…]Once Content ID finds a video with my music in it I can decide if I want to just track the video, or “monetize” it, i.e. put Dorito ads on it. That doesn’t always seem appropriate but if I do decide to monetize a video, or if the uploader already had ads on it, Google gives the majority of the ad revenue to them and about a third to me for the soundtrack. It really doesn’t pay very much but it does put “Zoe Keating” and a song title in the description of every video…in other words, credit.

Okay, so far so good. Zoë says there are 9,696 videos using her music, with a combined 250,000 views per month. That’s actually pretty cool. Millions of people every year are exposed to her music, and she doesn’t have to spend a penny on advertising. In exchange, the creators of those 9,600 videos get a strange sort of post hoc license for the music they used.

This isn’t strictly the sort of mechanical licensing scheme that the Copyright Act outlines, but as far as “gargantuan digital advertising platform creates equitable outcome for IP regime outmatched by information age,” they could do worse. YouTube has engaged in some pretty skilled baby-splitting, without throwing any of it out with the bathwater. This doesn’t sound so bad!

Dun dun duuun

Here’s the thing. Google really Readers things up. Or iGoogles them up. Or Knols or Waves or Videos or Buzzes or Jaikus or … ah, heck. It’s a long list. Things go bad.

This whole story starts because Google is launching YouTube Key Music, which used to be Google Play Music All Access, which used to be Google Music. It’s one of those “all you can eat” streaming music services – think Spotify or Rdio – built on top of YouTube, instead of starting from scratch. It makes a lot of sense to start with what you’ve got, but it’s not necessarily… good.

Sidebar: Google Play Music All Access was literally the name of a thing. A room full of highly-paid adult humans looked at a Powerpoint presentation with those words and they all apparently said “yes this is a good name for a thing.” Seriously. YouTube Key Music is an improvement. Just about anything would be.

Because Key Music will be built on top of YouTube (home of the Content ID system), Musicians like Zoë Keating are getting more than they bargained for, in the Faustian sense. They signed up for Content ID when it was a way to get credit for their music, or to make a little money, or both. (Or just to block unauthorized use of their music.) Of course, this was in the long ago times: the year 2012. I can barely even remember that far back.

As of a couple months ago, Google has decided to merge the Content ID system with their new Key Music system. That means all music registered for Content ID will become part of the streaming music catalog on Key Music. Essentially, if a musician wants to get credit for their music on YouTube, they must also let Google sell that music to Key Music subscribers.

The Fine Print

So here’s where we get back to that “Don’t Be Evil” thing. Content ID wasn’t evil. YouTube Key Music probably isn’t evil, although Google is definitely pulling a bait and switch, which isn’t awfully nice. But hey, times change and systems need to be updated. It’s not 2012 anymore. (I mean, can you believe how people used to dress back then? Wild!)

But it’s bait and switch and a new contract. And this is where Google gets … less good. It’s not just “if you want credit, you let us sell your music”; you also have to agree to a whole bunch of new terms and conditions.

Zoë has a problem with a few of them:

1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description will be automatically included in the music service too.

Google, have you seen the comments on YouTube? It’s a community legendary for turning every comment section into a flame war about race, gender, religion, politics, and everything else. An adorable baby turtle eating a piece of lettuce will beget comments that go from “FIRST!” to “Obama nazi amerikka fascist 9/11 conspiracy kill all hindu scum” in six moves. It’s like degrees of Kevin Bacon, but with crazy instead of Bacon.

And these users are allowed to essentially add music into the Key Music program on their own?

Seriously. If someone else decides to put my music in a video, suddenly, that song goes on the Key Music service? That’s absolutely absurd.

2) All songs will be set to “monetize”, meaning there will be ads on them.

When the system was just Content ID, musicians had discretion in putting ads on videos using their music. Now that it’s Key Music, it’s apparently mandatory.

This isn’t evil, but it seems strange that musicians no longer have a choice. I’m going to go out on a limb and guess that the ads will say “Listen to this song and millions more on YouTube Key Music!” for a while. Call it a hunch.

3) I will be required to release new music on Youtube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

Apparently, Apple doesn’t mind if you release music on Bandcamp first, and then only get around to putting your music on iTunes later. But, uh, Key Music won’t stand for that kind of favoritism? Way to go, Google. Your music service is more overbearing than Apple, the industry standard for burdensome walled gardens. Slow clap noise goes here.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

Well, you know what they say: “Beggars can’t be choosers, but we’re a colossal internet advertising company and you’re an independent musician so we’re not ‘begging’ so much as ‘telling.’” This is kind of running up the score, though, isn’t it? You’ve already taken the Content ID system and turned it into a streaming music service. Now you’re potentially going to force musicians to re-upload songs (for a service they may not have even wanted) in higher quality? Just take a knee and run out the clock.

5) The contract lasts for 5 years.

…honestly, as far as intellectual property goes, five years is almost the blink of an eye. Zoë Keating’s music will be protected by copyright for another 110 years (give or take). Which is pretty bonkers. Although, at the rate Google and YouTube are going, in another five years, we might be onto the successor of the successor of Content ID and Key Music.

But nobody knows what these “all you can eat” services will look like by then. Spotify hasn’t even been in the US for five years yet. MOG lasted three years. Its successor, Beats Music, lasted two. Google Play Music All Access lasted just 18 months before YouTube Key Music was announced. Things change quickly. But musicians will be stuck with this deal for a long time.

battlestar googlactica

All this has happened before, and all this will happen again. This whole story fits right in with Google’s modus operandi over the past few years. Remember when Google Plus saw lackluster adoption rates, and so Youtube “upgraded” users’ accounts to Google Plus? That was weird. They were two completely separate products, and they rolled the crap one into the popular one. See also: Places and Reader, both rolled into Google Plus.

People were actually making comments on YouTube, and sharing videos on YouTube. It was actually a thing people used. Google Plus was not so much. Now Google requires everyone to use the thing they don’t want (Google Plus) in order to use the thing they do want (comments).

Here we are again with Key Music; it looks like from now on, when Google has a product that doesn’t get a lot of traction with the public, they’ll relaunch it using a popular product as leverage. Content ID is popular. YouTube comments were popular. Now they’re integrated with Key Music and Google Plus, respectively. This serves nobody’s interests more than Google’s. And that’s how you build an evil empire.

But hey, who knows? If Key Music is really successful, maybe it’ll be the leverage for Google Plus in a few years!