Less than a month before his death, in response to fans who complained about his practice of removing concert footage from YouTube, Prince tweeted that the service "doesn’t pay equitable licensing fees" and suggested concerned fans address their complaints to YouTube, rather than him. The Artist, who had worked to take his music off YouTube, later deleted the tweet, but his feelings about streaming services didn't appear to change; at the time of his death, most of his work wasn't available on any major streaming provider other than Tidal, the Jay Z–owned service that promises to pay higher royalty rates to artists.
In the days since Prince's death, thousands of his songs have been shared on the internet, and Web Sheriff, the company he used to manage the rights to his music, has been issuing takedown notices on an almost daily basis. Hundreds of Prince videos, from rare concert footage to full albums, were uploaded to YouTube, though many of those have also started to disappear.
While the vanishing Prince videos may be the most visible example of YouTube's contentious relationship with some artists and record labels, it's far from the only one. In fact, an industry coalition is pushing for a change to the safe harbor provision of the Digital Millennium Copyright Act (DMCA), which shields YouTube and other services from liability for hosting copyright-violating material uploaded by users, as long as the service doesn't actively participate in the infringement and takes the content down when notified by the rights holder. The law, passed in 1998, has long caused what lawyers have sometimes called a battle between Northern and Southern California, with the Los Angeles–based entertainment industry fighting against the law, while the Silicon Valley tech community has argued in favor of it.
In a column for The Guardian last week, Blondie's Debbie Harry wrote that Google and YouTube are "profiting from the law; the people who make the music are not," and called on President Barack Obama and the major party presidential candidates to "lobby Congress to change the DMCA."
Other artists, ranging from Katy Perry to CeeLo Green to Barry Manilow, signed a petition sent to the U.S. Copyright Office in early April demanding DMCA reform. "The DMCA was supposed to provide balance between service providers and content owners, but instead it provides harmful ‘safe havens’ under which many platforms either pay nothing or pay less than market value for music," the document stated. A separate petition, from artists’ managers, argued that the DMCA is a relic from "a time when downloading or uploading a song took minutes or hours" and is out of place "in an Internet ecosystem with gigabit connectivity and nearly a billion websites."
Artists Say They're Overwhelmed
A key issue for safe harbor protesters is the way the law requires rights holders to find and report violations, rather than putting that burden on services like YouTube. Harry, in her Guardian column, called the work of monitoring the internet for copyright violations "an impossible task," echoing the managers' petition, which stated: "No one can police that vastness—and anyone who tries to do so finds the universe online is growing faster than our ability to inspect it for illegal copies of our clients’ work."
Supporters of the current system argue that it’s critical for free speech, online media and e-commerce. “If we didn’t have safe harbors, we wouldn’t have YouTube, Facebook, Twitter, Etsy or eBay,” says Corynne McSherry, legal director of the Electronic Frontier Foundation (EFF). “All of these services wouldn’t exist at all, because the risk of legal liability is too high.” McSherry also says that the current system is far better for rights holders than what existed before the DMCA’s passage. “Back then, if you wanted to get something taken off the internet, you’d have to go to court. Now, all you have to do is fill out a form or send an email.”
YouTube also defends the practice of allowing its users to upload music videos, commenting in a recent statement that "thousands of labels and rightholders have licensing agreements with YouTube to actually leave fan videos up and earn revenue from them. They agree that a world where fans express love for their favorite artists by uploading concert footage and remixes is something to be celebrated."
According to YouTube, artists and labels can derive significant advertising revenue from these videos, and if they really want them taken down, YouTube's Content ID rights management system provides a straightforward way for them to do so. YouTube, according to the service, has paid artists over $3 billion and provides "promotion that pays," allowing artists to reach new audiences.
The appearance and disappearance of Prince's videos could be seen as validating both arguments. The fact that he was able to delete much of his work from YouTube shows that the DMCA's takedown process provided a viable way to deal with infringing content. On the other hand, the rapid reappearance of his music after his death could be seen as an example of the challenges faced by even the most diligent and well-heeled rights holders (of course, Prince's representatives may have taken a deliberate go-slow approach to takedowns right after his death, recognizing that fans were sharing his work as part of their grieving process).
YouTube Has Faced Challenges Before—and Won
This isn’t the first time YouTube has faced a safe harbor challenge. In 2007, media giant Viacom sued YouTube for $1 billion, charging the video service with "massive intentional copyright infringement." Google argued that there was no way that the company could determine which videos uploaded to the service violated Viacom’s copyrights and that YouTube had no influence or oversight over user uploads. A judge agreed, saying that YouTube “did not have the right and ability to control infringing activity.” The two sides eventually settled, with reports at the time saying no money changed hands.
Will YouTube's model and the safe harbor provision survive the current challenge? While musicians have gotten bolder in their arguments against the payment structures of streaming services—Taylor Swift's battle against Apple Music is cited by some as a turning point that shifted power in favor of artists—some recent court decisions have indicated continued support for the safe harbor rules and have expanded the definition of “users” and “service providers” under the provision.
After the site Examiner.com was sued by a photo service over pictures that Examiner’s contributors posted without permission, the court found that the safe harbor provision protected Examiner from liability, even though the contributors were paid contractors. In a late April decision, the court stated that the contractors qualified as “users” under the DMCA, and that Examiner “did not have actual or circumstantial knowledge of the copyright infringement and therefore, is not disqualified from safe harbor protection.” The EFF’s McSherry says the “court got it right” and points out that users of YouTube can already earn advertising revenue from content they post to the service, so the fact that Examiner’s “users” were paid contractors shouldn’t exempt the publisher from safe harbor protection. “If the host doesn’t have knowledge of the infringement, the safe harbor should still apply.”
The current fight between musicians and YouTube is unlikely to be the end of the issue, though changing the law will require an act of Congress—something that’s unlikely to happen during an election year.
One thing is clear, however: Regardless of how things turn out, those Prince videos are coming down. Watch them while you can.