As copyright enforcement strategies go, licensing beats litigation any day (and DRM isn't even in this race)

As copyright enforcement strategies go, licensing beats litigation any day (and DRM isn't even in this race)

Summary: The big news today is Warner Music Group's agreement to license music to YouTube and its users. TechCrunch has some details as to how this is likely to work: YouTube and Warner Music Group Corp.

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TOPICS: Legal
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The big news today is Warner Music Group's agreement to license music to YouTube and its users. TechCrunch has some details as to how this is likely to work:

YouTube and Warner Music Group Corp. will announce a deal Monday that will put thousands of Warner music videos on the video sharing site and allow user created videos to legally use Warner owned music. YouTube is reported to have created technology that will automatically detect when copyrighted music is used in videos, give Warner the right to accept or reject those videos and will calculate the royalty fees Warner is owed. Financial details haven’t been disclosed yet, but may include a cut of advertising revenue in exchange for licensing rights. It's also unclear who will pay the royalty fees; that payment may come out of the advertising revenue or it may be demanded of the individual users who have put Warner music in their videos. That could get interesting.

Also interesting, as TechCrunch further notes, is the enforcement model Warner has decided to pursue:

...Warner will have effective veto power over videos using their music...In effect it’s just a technological realization of the long standing policy reality - YouTube has willingly pulled copyrighted content on request for some time. While DRM has been understood as a prerequisite for online distribution of major label content, this announcement seems to indicate a switch in responsibilities. Instead of the distributor locking down the content by default, use is open by default and can be closed at the rights holder’s discretion. It’s a very real recognition of the promotional power of copyrighted content being reused in original art.  (Emphasis added.)

In other words, Warner has chosen a more direct and effective middle ground for its copyright enforcement strategy as to YouTube's users (and as YouTube, which faces potential indirect liability for its users' acts). The "locate infringement and sue" model has always been an exercise of after-the-fact discretion, but an unpredictable and costly one. Rightsholders have to pick their battles based on the potential strategic value of a victory against a particular defendant.  Moreover, in every instance where rightsholders do opt for litigation, the chances of winning are never guaranteed, and the potential for doing more harm than good (through adverse judicial precedent and lost customer goodwill, for example) is very real.  By striking a licensing deal with YouTube, Warner Music has figured out a way to enforce its copyrights while effectively doing an end-run around the pesky, mercurial, cumbersome, and internationally difficult and inconsistent middleman known as the judicial system.  Warner still gets to choose its battles, but now it can get what it wants — e.g., use of music only in contexts it deems beneficial — without having to go to the trouble of suing YouTube users in their various jurisdictions.  For Warner, it's a win-win.  (Though some might argue the benefits of suing users might actually outweigh the many associated burdens.)  For users, it's less so.  Hopefully there will at least be guidelines for which sorts of uses will be encompassed by the license and which will not, but even if so, they will provide precious little certainty that any particular work will pass muster.  And for those who find themselves on the thumbs-down side of Warner's YouTube video review process, there is not likely to be any recourse other than becoming litigants themselves, and suing Warner in an effort to determine and enforce their rights under the fair use doctrine, first amendment, etc.  By going this route, Warner provides yet another example of how Code is Law — only here it's expressed in deal points and license terms rather than bits.

For further perspective, see:

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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3 comments
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  • Unfortunately licensing does not eliminate piracy!

    Licensing means those who abide by the laws of society will purchase their music via downloads. In no way does licensing eliminate or reduce piracy. The criminals who steal and illegally distribute copyright protected works are unwilling to abide by the laws of society and thus deserve stiff fines and prison like any other lowlife criminal.
    BeGoneFool
    • Dude-switch your meds

      If you would have read the article instead of flying off the deep end you would have realized this has nothing at all to do with what you are talking about.

      Licensing in this case is exactly a license to [b]legally[/b] make and distribute home-made videos with music from Warner on YouTube. This license has nothing to do with the aberration of non-negotiable contracts of adhesion that unilaterally allow the seller to change the terms without notice which online stores force consumers to sign prior to "purchasing" music from online stores which some (intellectually dishonest) people like to call an end user license as it sounds better than shrink-wrap/click-wrap contract.

      In fact the entire YouTube/MySpace brouhaha has very little to do with "pirating" music in the way one would think of such but rather has to do with fans setting up webcams and shooting their own videos incorporating music from the labels into their homemade works.

      Things such as videotaping oneself dancing to music , lip-synching to music, making video game characters dance to music, or animating their own videos.

      While you may call these youngsters criminals, I call them youths expressing themselves creatively who don't realize that it is actually against the law to videotape themselves using music without permission (A Creative Commons license or other such would count as permission so I don't really consider Warner's offer all that altruistic, as the youths would figure out they could be making videos-hence promoting CC content).

      Consider these youths are engaged in the creative and mostly non-harmful activity of making videos instead of drinking, vandalizing the local 7-11, busting out windows, dealing/taking drugs, or any number of self-destructive behaviors that youths could be engaging in.

      I personally find this refreshing that Warner is allowing the youths to express themselves this way. Youths engaging in creative efforts should be encouraged rather than punished, with jail time no less, as you suggest.
      Edward Meyers
    • By your standards, 70% of California drivers criminals

      After all, that appears to be the percentage that routinely ignore speed limits (unless, of course, the police are believed to be in the vicinity). I don't deny that copyright infringement is a problem, but it's never going to be entirely stamped out, even if we decree the death penalty for those caught at it (which I don't suggest).

      Besides, I would argue that copyright infringement, like exceeding the speed limit on a public road, is wrong only because it is illegal (reckless driving is another matter), as opposed to more serious offenses like murder, rape, and robbery, which are illegal because they are universally held to be criminal acts (legalizing them would not make them less criminal).
      John L. Ries