The blogosphere has reacted with horror at the notion that the RIAA—the Recording Industry Association of America—might take action against YouTube for hosting content using recorded music without permission. Cory Doctorow of the Electronic Frontier Foundation characterizes this as “crazy, of course,” while John Battelle, author of The Search (a good book: my review here), puts the point more colorfully: “Wake up. This is how we use music in the read world. Get over yourselves.”
YouTube is the next future of television. Maybe or maybe not, but YouTube and sites like it are scorchingly hot right now. These sites host video content created by users (user-generated content or amateur content). Some of the content is extraordinarily good (my favorite: 10 things I HATE about commandments (watch it twice and count the number of probable copyright violations the second time)), most is dreadful. As Cory Doctorow’s post makes clear, the RIAA has not said that they would pursue action again these sites or the consumers creating the content.
For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public’s knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube. To see that, we should start in 1917.
Music was sold as sheet music. You bought a copy of the song, gathered the family around the piano, and sang. Of course, you could take the same sheets of paper to your home or to anywhere else. Enterprising sorts did just that. Sheet music was played live at restaurants and hotels. Dinner and a song.
The 1909 Copyright Act assigned a number of rights to copyright holders. These included the right to print and make copies of the work; to perform the work publicly if the work was a drama; and, for musical compositions, to perform the work “publicly for profit.”
Be clear on what this means. Same piece of paper—sheet music—but different rights depending on use. I could buy sheet music and take it home and sing to my heart’s content, but I could not take it to my restaurant and do so without violating copyright if that counted as a public performance of the music for profit. Was it? Yes, indeed, said the Supreme Court in 1917, in Herbert v. Shanley Co., in a unanimous opinion authored by Justice Holmes. Eight years later, a federal appellate court reached the same conclusion for the new mass medium of that day, radio broadcasting.
These are not laws of nature. We could have a rule that said that anyone buying sheet music can use it in any fashion possible, at home or in a restaurant, on the radio or streamed from YouTube. Our original copyright law—enacted in 1790—didn’t say anything about music at all. This is a choice, a choice that some uses are different from others and that copyright holders can appropriately charge different prices for different uses.
The 1917 decision led to the creation of ASCAP—the American Society of Composers, Authors and Publishers. If restaurants playing sheet music are supposed to pay up, how does a song writer collect? ASCAP established an institutional structure—policing, licensing and distribution of fees—to make this work. This isn’t easy and can give rise to its own problems, as ASCAP and BMI, a parallel rights organization, are frequent antitrust targets (I discuss this here).
And what I have said is just a bare glimpse of the full complexities of this situation. I have focused on hosting services such as YouTube and musical compositions. I haven’t said anything about the individuals producing the content—do they face liability too or can they claim fair use?—or about the fact that a separate copyrighted work—the sound recording—is also in issue in these situations.
But this is how we pay for music in the real world: different uses, different prices, and until we change the law and come up with a better way to pay for music, you should assume that the music industry is going to show up one day and knock on YouTube’s door.