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Irving Azoff continues to put pressure on YouTube over song rights

By | Published on Wednesday 19 November 2014

Irving Azoff

Despite being best known as a veteran artist manager and, from his time co-running Live Nation, a key player in live music, Irving Azoff has fast become a vocal figure in the music publishing domain since launching his new Global Music Rights venture, which is seeking to directly represent the public performance rights of 42 songwriters, from Smokey Robinson to Pharrell Williams, where previously licencees would likely have relied on licences for collecting societies, or ‘performing rights organisations’ if you prefer.

As previously reported, as YouTube got busy unveiling its new Music Key service last week, Azoff claimed that – while the Google subsidiary might now have deals in place with most of the record labels to launch its stepped up freemium services and in-beta subscription offer – it did not have the right licences relating to the copyright in the songs (as opposed to the recordings) created by GMR’s songwriter clients. Azoff reckons that this affects some 20,000 songs in total.

Legal letters are now being exchanged between Azoff’s company and YouTube, resulting in a debate that could test a number of areas of American copyright law.

That would include the reach of licences provided by US collecting societies ASCAP and BMI; the definition of a stream in copyright terms, in particular what elements of the copyright (performance, mechanical copy etc) are being employed when music is streamed; and whether an audio track plus image (which will become more common as YouTube adds album tracks into its system) should be classified as a video or audio stream.

And, perhaps most importantly, the reach of the Digital Millennium Copyright Act’s safe harbours in enabling YouTube to run an ‘opt out’ rather than ‘opt in’ system at the core of its music service.

According to Billboard, the main flow of conversation between GMR and YouTube so far has been for the latter to claim it does, in fact, have licences covering the song rights the former refers to. But GMR counters that YouTube has not yet made it clear on what grounds it believes it has those licences in place (is it relying on BMI/ASCAP licences, or a licence from a collecting society abroad, or some sort of direct deal with a corporate music rights owner?), and Azoff’s company wants some clarification.

GMR’s legal rep Howard King is quoted in Billboard thus: “Obviously, if YouTube contends that it has properly licensed any of the songs for public broadcast, a contention we believe to be untrue, demand is hereby made that we be furnished with documentation of such licenses”.

If it transpires that YouTube does not have the right licences – or if it’s easy for GRM to revoke any agreement via which the video site is accessing the rights to its writer’s songs – then the next big debate is how Azoff’s company can go about having the songs remove from both the Google firm’s new Music Key service and the YouTube platform at large.

As a user-upload set-up, YouTube, of course, has always said that if rights owners don’t want their content on the site they need to spot it and issue a takedown notice, as described in the DMCA. The firm’s Content ID system is there to help with this process, but ultimately it’s the rights owner’s job to police its content as it appears on the YouTube platform.

This is a pretty accurate interpretation of the DMCA, though plenty of rights owners have complained about the onus it puts on labels and publishers. And Azoff might yet take YouTube to task on this point, he having remarked that “they hide behind safe harbour, but that doesn’t protect a knowing and wilful infringer”.

That latter part of that remark is key, because the notion of “wilful infringer” has been debated in some recent US court cases as a possible way of limiting the DMCA safe harbours, albeit with limited success so far. Meanwhile others have noted that, as YouTube starts to pump content into its system itself as part of the album track element of Music Key, it won’t necessarily be able to rely on DMCA safe harbours – which cover only user uploads – so may have to go further to ensure it isn’t violating the copyrights of song owners, even if the content it self-uploads comes from its label partners.

Azoff says he’s not planning on going legal on all this just yet, though the language being employed by GMR and its lawyers might be more threatening in tone than YouTube is used to. Certainly this whole element of the YouTube v music community debate is one to watch.

Though for now YouTube itself is adopting a conciliatory tone, telling Billboard: “We’ve done deals with labels, publishers, collection societies and more to bring artists’ music into YouTube Music Key. To achieve our goal of enabling this service’s features on all the music on YouTube, we’ll keep working with both the music community and with the music fans invited to our beta phase”.