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US industry rallies as safe harbours review deadline arrives

By | Published on Friday 1 April 2016


The American music industry has followed its European counterpart in coming together to sing that most modern of folk songs: “Safe harbours, safe harbours, safe harbours, will you fucking sort this shit out?”

Though this wasn’t just an impromptu sing song to mark the arrival of April, this was a formal submission to the debate on safe harbour provisions contained within America’s Digital Millennium Copyright Act, a discussion instigated by the country’s Copyright Office right at the end of 2015. The deadline for such submissions was recently extended until midnight tonight, hence the music industry’s only slightly made-up lyrical demand.

As much previously reported, the so called safe harbours are rules in copyright law that say that intermediaries like internet service providers and server hosting companies cannot be held liable for the copyright infringement of their users, providing they have some sort of system in place via which rights owners can log when said users do infringe and demand the ISP or server firm remove the infringing files.

Which is all super sensible, except platforms like YouTube have utilised the same safe harbours to build opt-out rather than opt-in streaming services. This means rights owners are obliged to monitor such services’ servers 24/7 and request content be removed, and until they do so the digital firm can operate a set-up that competes with companies like Spotify, but without any of the liabilities and upfront costs incurred by opt-in streaming businesses.

This, say the record labels and music publishers, has created a ‘value gap’, where YouTube-type services exploit the safe harbours to provide music streams at bargain basement (or zero) rates, which means they can offer the content free to the user without losing too much cash. This in turn makes it harder for the Spotifys of the world to hook in new users. It also results in Spotify and Deezer arguing that they need to offer free on-demand streams as well to have any chance of signing up sufficient paying subscribers.

All of this has become the top bugbear of the music rights industry in the last eighteen months, with the “bloody value gap” now occupying the slot in record business press releases and reports that was traditionally reserved for “argh, piracy!” statements. With copyright law up for review in Europe, music firms have been lobbying hard to have safe harbours reformed in the EU so that YouTube et al would no longer qualify for protection. Then, over the Christmas break, the US Copyright Office announced that it too would be reviewing this controversial element of copyright law.

Which is why, according to the Recording Industry Association Of America, nearly 400 artists, songwriters, managers and music industry trade groups and collecting societies have come together this week to ensure the American music community’s viewpoint on safe harbours is loudly communicated. Hundreds of creators and performers, and over 40 artist managers, will make submissions, while “eighteen separate major music organisations representing virtually the entire music community” have come together to produce a one hundred page document that explains “the myriad flaws in the DMCA”.

Says the RIAA, everyone involved in this big submit is “demanding reforms to the antiquated DMCA which forces creators to police the entire internet for instances of theft, placing an undue burden on these artists and unfairly favouring technology companies and rogue pirate sites. All these diverse voices agree that the DMCA has failed to effectively prevent piracy and has distorted the music economy, undermining the next generation of creators and putting our cultural heritage at risk”.

RIAA boss Cary Sherman says: “I don’t recall a time when the entire music community has united behind an issue like it has this one – speaking with a collective voice for reform of the DMCA. This outdated and dysfunctional law has hurt everyone involved in creating music, from the newest emerging artists and songwriters to the global superstars, from the smallest labels and publishers to the biggest majors. I hope this unprecedented coming together will encourage policymakers to take the steps necessary to update this law and ensure the creative future of music”.

That might be a bold ambition in the US, where even some of the industry’s own people quietly admit that US Congress is unlikely to radically rewrite copyright law to Google’s disadvantage. Though, presumably, the RIAA et al are hoping that the Copyright Office review coupled with this high profile push from key industry players and artists like Katy Perry, Steven Tyler and Lionel Richie might make some impact. While back in Europe, the industry’s lobbyists seem much more bullish about their chances of getting safe harbours reformed, even if our sources in Brussels don’t necessarily share that optimism.

Google and the other web and tech giants will, of course, fight the music and wider entertainment industry on all of this. Already The Internet Association in the US has insisted that the DMCA is actually “smart law” that is working as intended. And anyway, artists and songwriters all surely love having to monitor the internet 24/7 for all and any infringement of their works, and if they didn’t have all that to distract them, they’d just do something stupid like write a new song and record it.

They didn’t actually say that second bit. But I bet they thought it. And the IA did say in a blog post this week: “These smart laws allow people to post content that they have created on platforms – such as videos, reviews, pictures, and text. In essence, this is what makes the internet great. The safe harbours enable platforms to operate at the scale necessary to create huge benefits for consumers and creators. They have fuelled the creation of a booming domestic internet economy that was worth nearly $1 trillion or 6% of GDP in 2014”.

Yeah, whatever. Those angry artists should all do a We Are The World style version of my little folk song and truly engage their fans and American voters on this issue by posting it on, oh, hmm, probably YouTube. Damn.