Copyright infringement is nothing new. Illegal newspaper-style songsheets challenged the music publishing business in the late 1920s, and it took years of legal challenges to insure that licenses were obtained for legitimate song magazines. Illegal fake books, which most of us have and use (I bought one of my first in the shadows of the Local 802 hiring hall in Roseland Ballroom), also were produced without licenses, and this has changed to a large degree as well. Bootleg 78s were made, much like more contemporary album or concert bootlegging. Cassette dubbing, CD ripping and burning, and now digital files are all part of the history of infringement, and most of us have partaken in many of these areas as a matter of course. But today, in the digital music economy in particular, the concept of copyright is undergoing an even more intense challenge. This is at least partially because of loopholes in two major legislative acts that were enacted in the U.S. and the E.U.

In the U.S., Section 512 of the 1998 Digital Millennium Copyright Act created a loophole for user-generated content sites such as YouTube with a “safe harbor” provision. The ins-and-outs are complicated, but it states that “A service provider shall not be liable for monetary relief for infringement of copyright…,” meaning the site is not responsible for what people upload, even if it is infringing on someone’s copyright. The 2000 Directive on Economic Commerce did the same thing in the E.U. with its “mere conduit exemption.”

On March 26, 2019 things changed dramatically for the international artists’ rights movement with the passing of what was originally referred to as Article 13 and is now Article 17 of the E.U.’s Directive in the Single Digital Market. The article limits the “mere conduit exemption,” and each country was given two years to implement rules to comply. The lobbying for relief from the Directive will of course continue by Google, YouTube, and other user-generated content sites, but the E.U. is leading the way regarding copyright issues. We’re hoping this will help us with our struggle in the U.S. as we seek to end the safe harbor protections as well.

These safe harbor loopholes were put in place some time ago, in a very different technological era, to provide relief in extreme cases. Google and YouTube, however, have taken advantage of them to allow copyright infringement on an unprecedented and massive scale. We see all the time online that this illegal content includes unlicensed uploading of recordings, at times even complete albums. Google, for one example, heavily monetizes this illegal content on YouTube through various means, including advertising targeting all users across the web. At the same time, we as creators get no remuneration for our work. Even more importantly, this is significantly devaluing our creations: they’re being given away for free. Musicians and record companies – whether major, independent, or self-released – cannot compete with free.

Dr. Stan J. Leibowitz, who serves as the Ashbel Smith professor of economics and director of the Center for the Analysis of Property Rights and Innovation at the University of Texas at Dallas, discusses this in his 2018 study, “Economic Analysis of Safe Harbor Provisions.” In it he examines how safe harbors, and piracy in general, adversely affect licensing pricing for those that do not rely upon safe harbors, such as Spotify and Apple Music. He also documents the “cascading harm” done to copyright holders through the safe harbor provisions.

Because of these safe harbor loopholes online piracy is rampant. For example, it’s said that 400 hours of content are uploaded every minute to YouTube, and in the range of 48 percent of all music is now heard there, making it the largest streaming service in the world. It dominates the world’s music listening. The user information they glean from the viewing of legal and illegal content is then monetized by targeting users with advertisements, contributing to Google’s annual income of $90 billion. Many musicians choose to use YouTube to create entire careers and upload their own content and monetize their work through that platform, sometimes extremely successfully. Good for them – that’s of course a personal choice and it’s their intellectual property. Much of the content on the platform, however, is illegally uploaded and is infringing on someone’s copyright. Along with this, no matter what you have heard, while it is easy to upload to YouTube, it is extremely difficult to have your illegally uploaded work taken down. If you do manage to have it taken down, there is nothing at this point that prevents someone from immediately uploading it again. This is referred to as a whack-a-mole situation, since you are constantly battling another version being uploaded.

A study was presented to the U.S. Copyright Office during their Section 512 Request for Comment period. It found 68 percent of indie labels were aware of a whack-a-mole situation involving their music, 87 percent of indie labels were aware of infringement of their music on YouTube within a three-month period, 65 percent have stopped searching for pirated works for lack of resources, and 30 percent have just stopped checking for piracy because of past unsuccessful efforts.

Even major labels have found they cannot keep up with illegally uploaded songs. They reduced funding for searching for online infringement some time ago. So imagine the effort it takes for independent artists who are probably spending all of their time trying to figure out how to scratch out a living. Musicians need to be paid for their work in order to make a living, and infringing on copyright on this massive scale is changing the music business to a degree we haven’t seen before. We haven’t seen the likes of Google, YouTube, Amazon and Facebook before.

At this point it is general knowledge that the power of these companies cannot be overestimated, and anti-trust investigations have been launched to address this. The E.U. fined Google 4.34 billion euros ($5.1 billion) for anti-trust issues surrounding their Android system in July 2018, and Facebook was fined $5 billion – the largest fine in the history of the U.S. Federal Trade Commission – for privacy issues in July 2019. Also in July 2019 the U.S. Department of Justice opened an anti-trust review into “market-leading online platforms,” implying Google, Amazon, and Facebook.

The Artist Rights Alliance, a nonprofit organization for artists’ rights, posted an open letter to the Federal Trade Commission and members of the House Judiciary Committee and subcommittees regarding the threats posed to creators by these huge international companies. In it they detail, company by company (Google, Facebook, Twitter, and Amazon), how their dominance is hurting musicians’ ability to make a living from their music. In the introduction to the blog post they state: “The ARA letter highlights ways in which the platforms’ data collection practices, market domination, safe harbor protections, and numerous other abuses damage the creative ecosystem and make it harder for artists to make a living, connect with their fans, and have control over their own work.”

These are some of the issues that the artists’ rights movement, including the Artist Rights Caucus of Local 802 (ARC) is trying to address. ARC also continues to try and keep you informed on these issues and we welcome and encourage the involvement of all 802 members.

Trumpeter Ben Bierman has been a member of Local 802 since 1980.