Even before the recent COVID-19 pandemic, professional musicians faced a plethora of unprecedented challenges. Prime among them is the digital paradigm shift, which has been both a blessing and a curse. While it has made it easier to distribute our music, it’s done little to reduce production costs (especially for acoustic music created by musicians playing together in the same place and at the same time). It has facilitated the erroneous belief (proselytized by big tech) that giving away the content you create in the hopes of monetizing your work via live gigs and selling merch is a viable business model. Surely COVID-19 has proven the fallacy of that! It has eviscerated our market, and for most of us, it has reduced our income, despite recorded music being consumed more now than ever before. In this article I’ll focus on a few of the obstacles to fairness confronting us in the digital domain that illustrate how some of the challenges we face are the result of predatory business practice, not the inevitable outcome of technological progress.

At the dawn of the commercial web, Congress crafted legislation intended to foster a balance among what they called “stakeholders” (i.e. those with an interest in what would become the internet of commerce we know today). These stakeholders were primarily: (1) those creating content, (2) those consuming content, and (3) those providing access to content. Musicians create the content, which our audience consumes or accesses via services (like streaming) provided by the online service providers (OSPs). A healthy, sustainable musical ecosystem in the digital domain requires a balance among the potentially conflicting interests of these three groups of stakeholders. That balance is what Congress tried to foster when they passed and President Clinton signed into law the Digital Millennium Copyright Act in October 1998.

Like most legislation, the DMCA was not perfect when it became law. It was the result of the kind of compromise and wrangling typical of the legislative process. It left some details to be “finalized” as what became the commercial web evolved. Consider what the web was in 1998 (with dial-up modems) and compare it to today’s internet…you get the picture. This is in part why some, like Thom Tillis, the chair of the Senate Judiciary Subcommittee on Intellectual Property, recently proposed overhauling the entire DMCA, stating in the December 17, 2019 issue of The Hill: “…the mechanisms enacted to achieve that goal [balance among the stakeholders] simply haven’t stood the test of time. Technology has changed faster than anyone could have ever imagined, and the existing DMCA simply isn’t able to address these new developments. The original DMCA was simply not designed for the kind of global data and advertising platforms that we have seen develop over time. It’s no surprise the old DMCA tradeoff has broken down in this environment — it simply wasn’t on anyone’s radar back in 1998.”

From its inception, the DMCA was designed to require the active participation of the stakeholders to iron out details of its implementation. The bill itself foresaw, and indeed spelled out, the requirements for the stakeholders coming together to create and agree upon what are referred to in the bill as “Standard Technical Measures.” These STMs are crucial to achieving the desired balance envisioned by the bill’s creators.

From the perspective of content creators this means establishing Standard Technical Measures that ensure fair and equitable protection of the rights of the creators and owners of the content that has become the lifeblood of the OSPs that profit from our work. Congress hoped to achieve this while also providing consumers access to our content without overly impeding the innovations that drive the development of the commercial web. Sounds fair…right? Yet as we approach 22 years since the passage of the DMCA, no such standard technical measures have been implemented.

In fact, during the decades since its passage, a “Trojan horse” within the DMCA has been revealed as a major impediment to the most fundamental of all artist rights: copyright. I’m referring to a safe harbor in the DMCA that limits the liability of OSPs when users of their platforms illegally infringe our copyrights. This safe harbor is section 512 of the DMCA. It needs to be reformed ASAP! A minimum reform should require more stringent adherence to the DMCA’s intention to balance the concerns of those creating content, those consuming content and those facilitating access to content. That requires the development and implementation of the STMs the legislators who wrote the DMCA envisioned.

There is currently no balance among the stakeholders’ concerns. When we compare the revenues of the entire recorded music industry in 1998 (which was roughly $15 billion), to those of the tech industry (when the most valuable company AOL was worth $222 billion) and contrast those figures with corresponding values in 2019, it’s clear who has profited the most. Last year one business analyst, Daniel Strauss, valued YouTube alone at $300 billion, and the tech world now calculates its value in the trillions, while, according to the RIAA the entire recorded music business was worth $11.1 billion in 2019. That’s right, during the almost 22 years since the DMCA became law, the revenues in the recorded music business declined, while the earnings of one company alone, YouTube, eclipsed that of the top-valued internet company in 1998! That doesn’t seem balanced to me!

Copyright is the law of the land and has been so in various forms since 1790 when it was first enacted by the founding fathers who established our democratic republic. So why does big tech use their overwhelming financial resources and enormous bully pulpit to undermine copyright? Why do they avoid developing and implementing the required STMs, and why do they resist reform of section 512 of the DMCA? Because they profit from the current status quo built upon a business model that exploits the 512 loophole limiting their liability for facilitating copyright infringement. Their persistent obfuscation of the truth by engaging in absolutist free speech arguments that divert attention from how they profit from copyright infringement, at our expense, does not alter the facts, but it does muddy the waters.

We all know what a cesspool of misinformation the social media world can be. The entire internet is awash with bogus information masquerading as fact. Finding out what’s what regarding how OSPs use our work for clickbait and then surveil our audience when they check out our work (collecting the data for monetization) can be a daunting undertaking. Many of the astroturf groups that shill for big tech have become First Amendment absolutists engaged in a zealous mission of spreading the gospel according to Silicon Valley. The internet is inundated with their misinformation designed to confuse folks. These shills literally employ the same scare tactics successfully employed by another group of constitutional absolutists…the National Rifle Association.

The NRA has been interpreting the Second Amendment in an absolutist manner for decades. We can all see how they do it. They scare folks into believing that any reasonable restrictions on gun or ammunition ownership is the beginning of a slippery slope to removing the right to bear arms from everyone that legally owns a gun in the U.S. Well, big tech and their shills like the Electronic Frontier Foundation and Fight for The Future advocate a similar absolutist interpretation of the First Amendment, pitting an absolutist interpretation of the First Amendment against copyright as if the two are in diametric opposition. They proclaim that any limits on how folks implement or express their absolute right of free speech will be the beginning of a slippery slope leading to removal of all free speech!

Big tech wants folks to believe that the First Amendment gives users of OSPs’ platforms the right to use our work without our consent, and with virtually no compensation, and that any reasonable restrictions limiting the ability to indiscriminately access or post our work by those that do not either own the rights or have a license will end free speech as we know it. And section 512 of the DMCA limits the OSP’s liability for the copyright-infringing activities they are profiting from because “technically” the OSPs do not post our content illegally, they just facilitate it.

The OSPs facilitate all of this through a variety of underhanded practices they either promote or tolerate. Let’s look at a few. They use our content for clickbait (in manners that are designed to be addictive). They then spy on the activities of those that have been “hooked” by our content to linger longer on a particular site. They even “recommend” similar things to listen to or watch to keep folks on a site. They monetize the data they mine through their surveillance. They often attach advertising directly to the content (even when illegally posted). And, finally, some platforms like YouTube (where recent studies conclude 56 percent of all online music is consumed) allow accounts to be set up anonymously. When we ask for copyright-infringing content to be removed, first they employ delaying tactics like disputing legitimate ownership claims (even questioning U. S. Copyright Office registration numbers by searching the USCO database using an altered title for a song in question, so they won’t find a match). When that fails, they want us to chase the platform users who posted our content illegally under a fake identity! When the OSPs are finally forced to remove the copyright infringing content, they let the infringing user repost it under a different fake identity. The whole process has become such a farce that it is now commonly referred to as “whack-a-mole.” And the OSPs are protected from direct responsibility for their facilitation of copyright infringement by section 512 of the DMCA. By the way, they also get to keep all the profits these illegal activities generate during the time it takes us to get it removed, even when we succeed with a takedown notice. So, they have no economic incentive to do the right thing! And when they do pay us, they pay less than one percent (in fact YouTube pays less than six ten-thousandths of a cent per play), and even that paltry sum requires that you are the featured artist, that you own the record company and are both the composer and publisher of the music…or you’ll receive even less.

The current eligibility for 512 protection under the DMCA requires OSPs to promptly respond to a takedown notice from the legal rights owner of an infringing post by removing the copyright infringing post. Many digital platforms that profit from our music are obviously more interested in finding loopholes than adhering to the letter or the spirit of the law.

The USCO (United States Copyright Office) recently released their long-awaited recommendations to Congress on reforms of Section 512. In their conclusion they state: “The Copyright Office concludes that the balance Congress intended when it established the section 512 safe harbor system is askew.… There is no doubt that the internet, in all its various component parts, has grown successfully and exponentially over the past two decades. However, despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of section 512 notices to address that situation remain significant problems.… Additionally, even with some important cooperative efforts at the margins, the degree and breath [sic] of cooperation between OSPs and rightsholders that was anticipated in 1998 has not come to full fruition.”

So, what can we do? Speak out about the inequities we’re confronted with. Discuss our plight with colleagues, friends and family. Join the growing artist rights activism movement by becoming a member of an artist rights group like Local 802’s own Artist Rights Caucus (ARC 802). Actively support calls for reform of section 512 of the DMCA. Pay attention to congressional actions like Senator Tillis’ hearings on overhauling the DMCA in the Senate Judiciary Subcommittee on Intellectual Property (where the first five of seven hearings scheduled this year occurred on February 12, March 10, May 27, June 2 and July 28, with two subsequent hearings scheduled for September 16 and October 6). When called upon… act … by sending letters and emails, etc., to your senators and congressional representatives requesting their support for the proposed reforms. Stay tuned and keep your eyes and ears open. When we get reform of section 512 of the DMCA, we will start to reclaim our market share and achieve the balance the DMCA originally sought to foster. This will help create a sustainable and equitable musical ecosystem where all the stakeholders profit and no one is exploited!

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Guitarist Ken Hatfield is the co-chair of the Local 802 Artist Rights Caucus. He has been a member of Local 802 since 1977. Reach him at www.KenHatfield.com. Meetup info for the next meeting of the Local 802 Artist Rights Caucus will be posted at www.local802afm.org/local-802-events. For more info, e-mail us at artistrightscaucus@gmail.com.