Bootlegs, Uploads, and Takedowns: Understanding Copyright Law In Music
There's been a lot of talk recently about takedowns and copyright notices among musicians and fans in EDM. Services such as SoundCloud have received an increasing amount of backlash from people who feel these services are "selling out" by following the law. While the world of copyright law is extensive and convoluted, it can be broken down into simpler terms for those who seek to know more. By understanding the laws that services such as SoundCloud are required to follow, and the processes they use to do so, we can start having the right conversations about the future of music and copyright online. While many have conceptions of what might be ideal, the law as it stands is the foundation of wherever we go from here.
A) Copyright infringement is illegal.
If a song is "© All Rights Reserved", then one isn't allowed to remix it, post it, put it in a DJ mix, or anything else without specific permission from the rights holder. Just because one isn't selling their remix or DJ mix doesn't mean it isn't illegal. This even applies to music that is given away for free the artist or label can still be the intellectual rights holder and control when and where this content is shared. Some entities choose to look at different routes for their releases. Creative Commons is an example of copyright that affords some additional allowances to people who want to remix or utilize a song, but not all songs are released this way and there are still restrictions to protect the creator.
B) Avoiding action in the past does not absolve one from action in the present.
Even if an old upload did not receive a takedown, one could still be targeted for a current upload. There are some ways to get around the automatic systems in place, but that doesn't make the act any more legal. Technology is ever changing, and SoundCloud is being hounded by content owners to update their systems to automatically find more copyrighted material. Remember, the rights holder is the one who dictates whether these things can stay up or are taken down, not services like SoundCloud or YouTube.
C) "Fair Use" isn't an adequate defense.
In copyright law, there's something called "Fair Use" that allows people to utilize copyrighted materials for certain things. In short, one would have to prove that they did not directly gain from it, it was not used for commercial purposes, one did not use very much of it, and it did not harm the market for the original. This doesn't work for things like free bootleg remixes because even if one did not make money from it, it can be argued that the remixer is still benefitting from the name and content of the person who is remixed.
D) Unfortunately, culture does not directly dictate law.
The sampling movement started in the era of 90s hip hop is a force which won't be undone so easily. It has permeated the digital music era entirely, and over the years has created an environment where it is generally accepted to utilize copyrighted content for the sake of artistic expression. However, the owner of intellectual property still has the right to pursue action against any infringement, and no amount of "artistic value" can change that. That doesn't mean they have to, and a lot of artists/labels don't pursue any direct action. For example, a remix could be flagged on Youtube as "Third Party Content", but may not receive a takedown notice - this is due to the level of restriction/freedom which the rights holder has instated. The bottom line is that these things are still illegal, and while there is a change in the way that many major and independent players see these actions, they still have every right to protect their intellectual property in a way they see fit.
"What I believe is happening in the industry today is that a lack knowledge and/or care for copyright and intellectual property is causing a lot of individuals to abuse it and think to themselves, 'Well, it will be fine because this won’t be looked at by the majors.' Having that attitude over copyright, especially with many new artists coming into the fray, is creating a bigger problem as digital music continues to evolve to territories that don’t rely on copyright law. Fortunately, with technology being more accessible to many artists, Soundcloud and YouTube have tried to bring up some resources to ensure that copyright and intellectual property owners can benefit from the illegal usage of their material, and/or have put systems in place to prevent it as a whole. There are potential problems and issues with all technology, but this is the first step in rectifying not only illegal usage but future piracy as well." - Jorge Brea, Symphonic Distribution
Services such as SoundCloud and Youtube utilize automatic content identification systems in order to expedite removal claims. This means that there is a robot which scans your music and compares it to a database of copyrighted songs. If the content owner has decided they do not want their works on a site, then the robot will automatically remove it. SoundCloud and other services are forced to do this because they are not exempt from the law.
Some time back, there was a big incident concerning Kaskade having most of his music pulled from SoundCloud. The automatic detection system mistakenly flagged his music as illegal and served him with takedown notices, emptying his account by roughly 70%. Following the fiasco, Kaskade himself actually wrote a blog article explaining what happened and why he was in the wrong to put the fault onto SoundCloud. These systems were working correctly, and the blame actually resided at Sony, the parent company of Ultra Records, who failed to white list his account for permission. Even so, SoundCloud received the brunt of the criticism, spawned by seemingly righteous fury toward the stifling of artistic expression.
In addition to automatic removals, all copyright holders share the ability to have their content removed from the internet through something called The Digital Millennium Copyright Act. Basically, any content owner is able to send a takedown notice and the receiving party doesn't have any option but to remove it, or else face harsh penalties in search ranking from sites like Google on top of further legal action. Major labels have loss prevention teams that scour the internet looking for their content which has been posted illegally, especially so for recently released music. In the eyes of these behemoth companies, each person who is able to stream the track from a third party is cutting away at a small piece of their revenue, and there is truth to that fact. Monetization of streams through ads allow many artists, both independent and major, to still earn a living from their music. The rise of Spotify and similar services are a great testament to the movement toward streaming music rather than downloading, and methods such as ad placement enable these services to exist in the first place.
"As a responsible hosting platform, we work hard to ensure that everyone's rights are respected. In the case of rights holders, that means having processes in place to ensure that any content posted without authorization is removed quickly and efficiently, and in the case of users, that means having separate processes in place to ensure that any content removed in error can be reinstated equally quickly. We cannot comment on specific cases or specific rights holders, but we apply our processes consistently and fairly - if any user believes that content has been removed in error (for example, because they had the necessary permissions from a label and/or any other rights holder), then they are free to dispute the takedown." - SoundCloud Spokesperson
The current viewpoint of major labels is that any unauthorized upload that avoids detection takes away revenue from their releases. In opposition to this is the passion of unaffiliated artists and fans who would want to remix, reimagine, and share the songs they love. While major labels may choose to serve takedown notices in the short term, the larger goal for the future should be to monetize all third party uploads, allowing the rights holder to be compensated for music uploaded by fans or remixes from budding producers. Right now, a lot of energy is being aimed toward shooting the messengers, who are the content hosts like SoundCloud and Youtube. Expanding our perspective to include the possibility of a fair system within the bounds of law would be a strong move for the independent music community. Understanding the law will allow us to eventually create a more welcoming digital environment for all artists, both major and independent, and lead to a greater overall prosperity in our scene and the industry at large.
Written by John Psymbionic
Disclaimer: The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of EDM.com.