Copyright Blog Update: Google’s Latest DMCA Abuse, Here Come the Bogus Bonds and Judge Says 1 + 1 = 1

Stephen Carlisle January 30, 2015

Google’s Latest DMCA Abuse

This week, artist friendly websites such as The Trichordist ¹ and Digital Music News ²  spread the word about Google’s bullying tactics against musicians, specifically cellist Zoe Keating. This blog has written about Zoe Keating before, in the post on streaming music services. ³ She epitomizes a forward thinking musician who embodies everything the internet seems to demand of present day musicians: a total DIY approach in which she is not signed to any record label, composes, records and distributes her music herself, even making certain songs free by uploading them to the Pirate Bay. ⁴

Her view is simple: “Is such control [over one’s catalog] too much for an artist to ask for in 2015?”

Apparently it is. She recounted, in great detail, Google’s attempt to strong-arm her into signing up with their new pay streaming service, Music Play. According to Zoe’s blog:

“Here are some of the terms I have problems with:

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.

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

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.

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

5) The contract lasts for 5 years.” ⁵

And what if she doesn’t go along with the new service? Then Google will block all the content on her existing YouTube channel and remove her Content ID privileges. ⁶ What follows is directly from Zoe’s transcript, to which I have added the identity of the speaker for the sake of clarity and cleaned up a few typos:

“[Zoe:] If I wanted to just let content ID keep doing its thing, and it does a great job at it and I’m totally happy with it and I don’t want to participate in the music service, is that an option?

[Google:] That’s unfortunately not an option.

[Zoe:] Assuming I don’t want to, then what would occur?

[Google:] So what would happen is, um, so in the worst case scenario, because we do understand there are cases where our partners don’t want to participate for various reasons, what we basically have to do is because the music terms are essentially like outdated, the content that you directly upload from accounts that you own under the content owner attached to the agreement, we’ll have to block that content.” ⁷

So the implicit threat is that unless she signs up with Google’s new system, they are going to block her existing videos from YouTube and throw her into “whack-a-mole” hell, in which she would be solely responsible for getting infringing content removed from YouTube. None of this would work if the DMCA provided for a “takedown and stay down” notification system, as noted previously on this blog. ⁸ She would not need the Content ID system at all, since if she was free from having to license her music to Google in order to get piracy protection, she could then release her music where and when and in whatever format she sees fit. Which should be the right of the artist to decide, shouldn’t it?

It’s just one more way in which the DMCA gets abused by Google, ⁹ a rather cynical use of their “safe harbor” protection to bully an independent musician into a one-sided contract.

Google’s response to this adverse publicity was to smear Zoe to various media outlets calling her claims “patently false.” ¹⁰ What Google hadn’t banked on was that Zoe had a complete transcript of the conversation, which in response to Google’s smear tactics, is now available on her blog. ¹¹ Google also demanded a retraction of the blog headline from Digital Music News. ¹² Again, what Google didn’t count on was people quickly noticing that when they were using similar bullying tactics against various independent record labels in 2014, several news outlets reported virtually the same charge in their headlines, including Forbes, ¹³ The Guardian ¹⁴ and Time. ¹⁵

As a final note, what was very interesting was Zoe revealing that the terms of her contract with Google prevented her from disclosing how much Google paid her.

“[M]y monthly number of Pandora spins is also about 250,000. I’m allowed to talk about how much that pays, about $324 (sound recording + artist payment combined). It’s a violation of my agreement to say how much a comparable number of YouTube plays pays.” ¹⁶

Wow, Google, that’s some kind of commitment to transparency you’ve got there.

Here Come the Bogus Bonds

A scant two weeks ago, this blog wrote about the James Bond books going into the public domain in Canada, and other territories around the world. ¹⁷ The blog posited the possibility that new James Bond stories and books could be created in those territories.

Well, it didn’t take long. According to the Bond fan site MI6-HQ, ¹⁸ a Canadian publisher announced plans to create new Bond stories.

“Independent Toronto publisher ChiZine Publications announces they will be publishing a new anthology of short stories featuring James Bond now that Ian Fleming’s work has entered the public domain in Canada. The anthology, titled Licence Expired: The Unauthorized James Bond, will be edited by Toronto authors Madeline Ashby (vN, iD; Company Town) and David Nickle (Knife Fight and Other Struggles, The ’Geisters, Eutopia).

‘We want to feature original, transformative stories set in the world of Secret Agent 007,’ says Nickle. ‘We’re hoping our contributors will combine the guilty-pleasure excitement of the vintage Fleming experience with a modern critique of it.’

‘This is an opportunity to comment on the Bond universe from within it,’ adds Ashby. ‘We’re specifically looking for writers and stories that would make Fleming roll in his grave.’” ¹⁹

He might do just that.

Federal Judge Decides 1 + 1 = 1

There are two cases currently in litigation which are having issues with the rights inherent in a sound recording as opposed to the rights in the underlying musical composition. This is one of the issues in the lawsuits brought by Flo and Eddie, Inc. against various digital radio services, a topic which has been the subject of several blog posts here.

The first is the highly publicized case between the Estate of Motown legend Marvin Gaye, composer of the song “Got To Give It Up” and “After The Dance” against Pharrell Williams and Robin Thicke, the composers of the Robin Thicke hit song “Blurred Lines.” In denying the Motion for Summary Judgment, the Judge made one crucial ruling; namely, that the copyrighted work was the lead sheet deposited with the Copyright Office, not the sound recording.

“[The Estate has] the burden to prove that they own the material…allegedly infringed. (citation omitted) [The Estate] have failed to produce evidence that creates a genuine issue as to whether the copyrights in “Got To Give It Up” and “After The Dance” encompass material other than reflected in the lead sheets deposited with the Copyright Office. (citation omitted) Accordingly for purposes of the analytic dissection performed in connection with this Motion, the lead sheets are deemed to define the scope of [The Estate’s] copyrighted compositions.” ²⁰

This hurts the case of the Gaye Estate, since the recordings bear similarities that do not exist in the sheet music. The testimony is that Gaye wrote the song in the studio, and was not a fluent reader of musical notation. ²¹ It is unknown who prepared the sheet music deposited with the Copyright Office. At the time, the Copyright Office would not accept recordings to register musical compositions. ²²

The decision recognizes, correctly, that the copyright in the musical composition and the copyright in a sound recording are two distinct copyrights.

Thus, it is hard to reconcile that decision with another court’s decision that only one award of statutory damages may be made for the illegal reproduction of a sound recording and the musical composition contained therein. ²³ Here, even though the copyrights in the musical composition and the sound recording are owned by separate entities, the Court holds that “the composition and sound recording are subsumed in the same ‘work’ for purposes of statutory damages, and the Plaintiffs are entitled to recover only once per work.” ²⁴ But they are not one work, they are two works, and the Copyright Act states they may recover statutory damages “with respect to any one work.” ²⁵ The Court rules this way, even after acknowledging that if the Plaintiffs had sued separately, they could each recover statutory damages. ²⁶

So, in other words, 1 + 1 = 1. Something about this decision doesn’t add up.