You(Tube), Me, and Content ID: Paving the Way for Compulsory Synchronization Licensing on User-Generated Content Platforms

Brooklyn Law Review

Volume 81

Issue 3 Article 8

2016

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Nicholas T. DeLisa, You(Tube), Me, and Content ID: Paving the Way for Compulsory Synchronization Licensing on User-Generated Content

Platforms, 81 Brook. L. Rev. (2016).

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1275

You(Tube), Me, and Content ID

PAVING THE WAY FOR COMPULSORY

SYNCHRONIZATION LICENSING ON USER-

GENERATED CONTENT PLATFORMS

INTRODUCTION

Ever wonder about how the law regulates your cousin’s

wedding video posted on her YouTube account? Most

consumers do not ponder questions such as “Who owns the

content in my video?” or “What is a fair use?” or “Did I obtain

the proper permission to use Bruno Mars’s latest single as the

backing track to my video?” These are important questions of

law that are answered each day on YouTube

by a system

called Content ID.

Content ID identifies uses of audio and

visual works uploaded to YouTube

and allows rights holders to

collect advertising revenue on that content through the

YouTube Partner Program.

It is easy to see why Content ID

was implemented—300 hours of video ar e uploaded to YouTube

per minute.

Over six billion hours of video are watched each

month on YouTube (almost an hour for every person on earth),

and it is unquestionably the most popular streaming video site

on the Internet.

Because of the staggering amount of content

See A Guide to YouTube Removals, ELECTRONIC FRONTIER FOUND.,

https://www.eff.org/issues/ intellectual-property/guid e-to-youtube-removals [http://perma.cc/

BF4Y-PW6E] (last visited June 6, 2016).

How Content ID Works, YOUTUBE, https://support.google.com/youtube/

answer/2797370?hl=en [http://perma.cc/QF35-F64J] (last visited June 6, 2016).

Id.

YouTube Partner Program Overview, YOUTUBE, https://support.google.com/

youtube/answer/72851?hl=en [http://perma.cc/U42N-3XH5] (last visited June 6, 2016).

Craig Smith, By the Numbers: 120+ Amazing YouTube Statistics, DMR (Sept.

26, 2014), http://expandedramblings.com/index.php/youtube-st atisti cs/#.VCq6T SldXA4

[http://perma.cc/ R84K-R72Z].

Id.

Top 15 Most Popular Video Websites, December 2015 , EBIZMBA,

http://www.ebizmba.com/articles/video-websites [http://perma.cc/5HZP-57DC] (last visited

June 6, 2016). According to sproutsocial, a management and engagement platform for social

business, “YouTube is without a doubt the highest-trafficked web-based video publishing

platform.” Kevin King, Vimeo Vs. YouTube: Which Is Best for Business?, SPROUTSOCIAL

1276 BROOKLYN LAW REVIEW [Vol. 81:3

available on YouTube, an automated syste m such as Content

ID is necessary to help manage content owners’ rights.

Music rights holders in particular have benefitted

greatly from YouTube’s monetization of content through

advertising.

YouTube is the world’s largest streaming music

service.

To date, over $1 billion has be en paid to owners of

sound recordings and musical compositions.

All major record

companies and music publishers—from Un iversal, to Sony, to

Warner—are YouTube partners and utilize the Content ID

system to generate advertising revenue.

This revenue pool

has incr eased over the years and will continue to expand as

YouTube grows, providing a much-n eeded boon to a sinking

music industry.

This revenue pool is also unique because it is largely

derived from the unlicensed use of sound recordings and music

compositions.

To pair a copyrighted recording or song with a

(Sept. 15, 2014), http://sproutsocial.c om/insi ghts/youtube-v s-vimeo-bu sines s/ [http://

perma.cc/8DXE-U8X6].

See Steve Knopper, YouTube’s Billion-Dollar Payout Provides New Revenue

for Musician s, ROLLING STONE (Feb. 5, 2014), http://www.rollingstone.com/music/news/

youtubes-billion-dollar-payou t-provide-new-rev enue-for-mu sicians-20140205 [http://perma.

cc/EB8W-JGKK].

See Stuart Dredge, YouTube Reveals $1bn Music Payouts, but Some Labels

Still Unhappy, THEGUARDIAN (Feb. 3, 2014, 5:05 PM), http://www.theguardian.com/

technology/2014/feb/03/youtube-reveals-1bn-music-payouts-bu t-some-lab els-sti ll-unhappy

[http://perma.cc/M7BP-2ZCP] (“A recent piece of research by VideoInk and video analytics

firm Tubular Labs claimed that music videos account for 38.4% of all views on YouTube,

reinforcing the Google subsidiary’s position as the world’s biggest streaming music

service.”); The YouTube Musiconomy: Just How Big Is It? (Infographic), VIDEOINK (Dec. 17,

2013), http://www.thevideoink.com/features/special-issue/the-youtube-musiconomy-just

-how-big-is-it-inf ographic/#.VCq _CyldXA7 [http://perma.cc/G574-ERSG] (“Five of the top 10

trending videos on You Tube for 2013 were music videos . . . .”).

Statistics, YOUTUBE, https://www.youtube.com/yt/press/statistics.html

[http://perma.cc/S5FX-ZTEM] (last visited June 6, 2016); Knopper, supra note 8.

See Michelle Jaworski, YouTube’s Content ID Now Flagging Music in the

Public Domain, DAILY DOT (Dec. 26, 2013), http://www.dailydot.com/business/youtube-

content-id-public-domain-silent-night/ [http://perma.cc/7KE2-DNQ3] (mentioning that

a user video was flagged by BMG, Warner/Chappell, and Universal Music Publishing

Group, and that these companies receive all ad revenue from flagged videos).

In fact, in 2014, streaming royalties made up for the current decline in

digital downloads. Hannah Karp, Spotify Royalty Payments Outpace iTunes in Some

Markets, WALL ST. J. BLOG (Nov. 4, 2014, 11:01 PM), http://blogs.wsj.com/digits/2014/

11/04/spotify-royalty-payments-outpace-itunes-in-some-markets/ [http://perma.cc/5UU

U-7EE4]; cf. Paul Resnikoff, Streaming Isn’t Saving the Music Industry After All, Data

Shows . . . , DIGITAL MUSIC NEWS (June 26, 2014), http:// www. digitalmusicnews.com/

permalink/2014/06/26/streaming-isnt- saving-music-industry-new-data- shows [http://perma.

cc/TE2L-CLAM] (showing that streaming revenues for ad-supported, on-demand

streaming are increasing at a healthy pace, reflecting one of the few areas of growth in

the music industry).

See generally Bryan E. Arsham, Monetizing Infringement: A New Legal

Regime for Hosts of User-Generated Content , 101 GEO. L.J. 775 (2013) (describing how

monetizing infringing/unlicensed content is a new paradigm for copyright owners).

2016] YOU(TUBE), ME, AND CONTENT ID 1277

visual image, users must obtain permission from the copyright

owner of the underlying musical composition and/or the sound

recording (depending upon whether one or both are being used)

by securing a synchron ization, “synch,” or “sync” license.

One

secures these rights from a record label (usually the owner of

the sound recording) and/or a music publisher

(usually the

owner of the underlying musical composition).

This process is

cumbersome,

confusing,

and oftentimes expensive.

Thus,

most users upload videos without obtaining licenses, thereby

committing infringement.

Rights holders, however, derive

Types of Copyright, BMI, http://www.bmi.com/licensing/entry/types_of_

copyrights [http://perma.cc/K2CA-HPQG] (last visited June 6, 2016) (“Music Publishers

issue licenses . . . granting the right to synchronize the musical composition in timed

relation with audio-visual images on film or videotape.” (emphasis added)); Common

Music Licensing Terms, ASCAP, http://www.ascap.com/licensing/termsdefined.aspx

[http://perma.cc/5AYX-W2Y5] (last visited June 6, 2016); License Your Music, CD BABY,

http://members.cdbaby.com/license-your-music.aspx [http://perma.cc/VQC2-49J2] (last

visited June 6, 2016).

How to Acquire Music for Films, ASCAP, http://www.ascap.com/music-

career/articles-advice/film-tv/How-To-Acquire-Music-For-Films.aspx [http://perma.cc/P

TT9-9F6A] (last visited June 6, 2016); see BMI, supra note 14.

Generally, sync rights only refer to securing use of the musical composition

from the music publishers, while master use rights are used to refer to securing use of

the master recording from the record label, and thus, each of these rights must be

obtained separately. See Obtain a SESAC License, SESAC, http://www.sesac.com/

Licensing/obtainlicense.aspx [http://perma.cc/3AYJ-ULTM] (last visited June 6, 2016);

Heather McDonald, Master License,

ABOUT CAREERS, http://musicians.about.com/

od/ip/g/masterlicense.htm [http://perma.cc/7MJG-SAYX ] (last visited June 6, 2016);

Heather McDonald, Sync License, ABOUT CAREERS, http://musicians.about.com/

od/qz/g/synclicensing.htm [http://perma.cc/2ZE6-47ZN] (last visited June 6, 2016);

ASCAP, supra note 15. For the sake of simplicity, however, this note may use the term

“sync” rights throughout to mean both securing the right to use a musical composition

and the right to use a sound recording.

See Christiane Cargill Kinney, Posting Cover Songs on YouTube: Music

Licensing Law Explained, DIY MUSICIAN BLOG (Mar. 28, 2012), http://diymusician.cdbaby.

com/youtube/on-posting-cover-songs-on-youtube-music-licensing-law-explained/ [http://

perma.cc/N8SQ-JTJ3] (describing the complicated web of rights under the copyright act, as

well as the variety of licenses that must be obtained to properly license a cover song for a

YouTube video). See generally Solveig Whittle, How to License a Cover Song for a Music

Video, H

YPEBOT (Feb. 27, 2013), http://www.hypebot.com/hypebot/2013/02/how-to-license-a-

cover-song-for-a-music-video.html [http://perma.cc/6ETB-TEMK] (describing the multistep

process of obtaining a mechanic al license and a sync license).

Andy Baio, Criminal Creativity: Untangling Cover Song Licensing on

YouTube, WIRED (May 2, 2012, 3:24 PM), http://www.wired.com/2012/05/opinion-baio-

criminal-creativity/ [http://perma.cc/E8N7-9MNY] (mentioning that there is much

conflicting information on the Internet as to how a song is licensed for a YouTube cover

video); see Kinney, supra note 17 (“[T]his to pic touches on an extremely common

misconception that I frequently run across . . . .”).

Money for Your Music: The Cold Hard Facts About Music Licensing, MUSIC BIZ

ACADEMY, http://www.musicbizacademy.com/articles/gman_money.htm [http://perma.cc

/5KWV-9NNL] (last updated Apr. 2010) (one experienced music supervisor has synched

thousands of songs over the years and has charged anywhere from $1 to $250,000 per use).

See Kinney, supra note 17 (“So, you didn’t get your synch license. What

happens now? Well, we’ve all seen tons of examples that suggest that doing cover songs

is largely tolerated on YouTube.” (emphasis added)).

1278 BROOKLYN LAW REVIEW [Vol. 81:3

online streaming revenue chiefly from these unlicensed uses by

“claiming”

and “monetizing” these videos.

Every day, rights

holders ratify these unlicensed uses by allowing otherwise

infringing content to remain on YouTube.

In other words,

users can post any music they want without first obtaining a

license, so long as the content owner opts in to Content ID

monetization (and most have).

In practical effect, Content ID

has created a de facto compulsory sync licensing re gim e.

For illustrative purposes, consider the Bruno Mars

wedding video example above. Your cousin uploads the video

with a Bruno Mars recording as the backing track without

obtaining permission from the record label (to use the sound

recording) or music publisher (to use the underlying composition).

Your cousin then receives a small copyright notice, and a week

later, ads appear on the video. This means that the publisher(s)

and label(s) that own the song and sound recording claimed and

monetized the video with the help of Content ID, and your cousin

gets to keep her video up as if she had secured a license in the first

place. In essence, she is granted a compulsory sync license.

This note proposes that Congress should amend the

use of a Content ID–like system across user-generated content

What Is a Content ID Claim?, YOUTUBE, https://support.google.com/

youtube/answer/6013276?hl=en [http://perma.cc/8UNK-V7KX] (last visited June 6, 2016).

See Video Monetization Criteria, YOUTUBE, https://support.google.com/

youtube/answer/97527?hl=en [http://perma.cc/W2TA-GBFN] (last visited June 6, 2016).

Monetizing one’s video means that “YouTube may display ads served via the AdSense

auction as well as ads sold on a reservation basis via DoubleClick (DCLK) and other

YouTube-sold sources.” How Ads Are Chosen, Y

OUTUBE, https://support.google.com/

youtube/answer/94523?hl=en [http://perma.cc/QMH9-D3QG] (last visited June 6, 2016).

Interview with Brandon Martinez, CEO and Co-Founder, INDmusic, in New

York, New York (Oct. 31, 2014) (on file with author). INDmusic is a digital video startup

that operates one of the most active and successful multichannel networks for music on

YouTube. They first gained notoriety when they were responsible for monetizing all

“Harlem Shake” content on YouTube—one of the fiercest viral Internet sensations of this

decade. Andrew Hampp, ‘Harlem Shake’: The Making and Monet izing of the La test

YouTube Dance Craze,

BILLBOARDBIZ (Feb. 14, 2013), http://www.billboard.com/biz/

articles/news/branding/1539260/harlem-shake-the-making-and-monetizing-of-the-latest-

youtube [http://perm a.cc/U8K5 -MS2K].

See infra note 198 and accompanying text.

A compulsory license

provides a third party with the right to use copyrighted works without the

use. Also known as statutory licensing, compulsory licensing is primarily utilized

in situations where high transaction costs prevent beneficial negotiations and

agreements from taking place.

Neil S. Tyler, Music Piracy and Diminishing Revenues: How Compulsory Licensing for

Interactive Webcasters Can Lead the Recording Industry Back to Prominence, 161 U.

PA. L. REV. 2101, 2105 n.16 (2013).

2016] YOU(TUBE), ME, AND CONTENT ID 1279

(UGC) platforms

to issue these otherwise de facto compulsory

sync licenses. This would improve users’ experienc es, reduce

market transaction costs, grant higher royalty splits to artists on

YouTube, increase First Amendment protections for web-based

content, and improve overall access to content. Additionally, it

would enable copyright owners to better manage their content,

since Content ID–like systems would be mandated across the

web. It would also represent a natural evolution of copyright law

by responding to advancements in content management

technology, distr ibution, and consumption. Content ID has

revolutionized the lic ensing, management, aggregat ion, and

organization of copyrighted works and presents an excellent

model for reforming the copyright licensing system.

If the

technology is available, and a de facto compulsory licensing

regime already exists by virtu e of Content ID, why not

extrapolate this model across the Internet to facilitate better

licensing practic es?

Part I of this note describes the YouTube Content ID

system and its background, structur e, inner workings, and flaws.

For purposes of this note, Content ID serves as a case study that

exemplifies the issues that arise on UGC platforms generally.

Part II discusses the genesis of compulsory licensing in the

United States, especially under section 115 of the Copyright Act,

and describes its interaction with UGC platforms. Part III

explains why amending the Copyright Act to create a compulsory

sync license for UGC platforms is the natural evolution of

compulsory licensing and is necessary to establish a functional

ecosystem of copyright licensing on the Internet. It also describes

how a compulsory regime would solve various issues that exist

under the current framework, including by reducing Content ID

errors, improving user experience, and reducing transaction costs.

Part IV explains some of the issues inherent in the implementation

For the sake of clarity, this scheme would only apply to UGC platforms. User-

generated content is “any digital content that is produced and shared by end users of an

online service or website. This includes any content that is shared or produced by users that

are members or subscribers of the service, but it is not produced by the website or service

itself.” UGC includes anything from status updates/tweets, to blogs, to images/videos. User-

Generated Content (UGC), T

ECHOPEDIA, https://www.techopedia.com/definition/3138/user-

generated-content-ugc [http://perma.cc/8NZ4-LHM9] (last visited June 6, 2016). Thus, it

follows that UGC platforms, such as Facebook, Twitter, and YouTube, are websites or

applications that thrive mainly on content uploaded by users. See id.

For a fantastic discussion about central copyright clearinghouse licensing

generally, see WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE

FUTURE OF ENTERTAINMENT (2004), http://cyber.law.harvard.edu/people/tfisher/PTK

Chapter6.pdf [http://perma.cc/WG98-T4XX].

17 U.S.C. § 115 (2012).

1280 BROOKLYN LAW REVIEW [Vol. 81:3

of the proposed compulsory licen sing system. This note concludes

by highlighting that the benefits of a compulsory system far

outweigh any costs and calling on Congress to take action and

amend the Copyright Act to reflect the otherwise de facto

compulsory synchronization license.

I. T

HE YOUTUBE CONTENT ID SYSTEM

A. Overview

YouTube’s Content ID is the system that allows copyright

holders to manage their rights on YouTube.

First, vetted content

owners

their copyrighted content, most commonly audio and visual files.

These audio and visual files are known as “reference files.”

When users upload videos to YouTube, the videos are scanned

against the reference files to ascertain whether there is a match.

If either the audio or visual fingerprint of the reference file

matches the uploaded content, Content ID claims the user-

uploaded video on behalf of the rights holder, and the claim

appears in the rights holder’s Content ID account dashboard.

Upon viewing the claim, the content owner usually has the

option to “block, monetize, or track” the video.

These options are

known as match policies, and if the content holder has already set

How Content ID Works, supra note 2. Content ID is unique to YouTube,

although there are other comparable systems that have been launched on other UGC

sites. See Mike Masnick, Vimeo Pressured into Setting Up Its Own Content ID,

TECHDIRT (May 22, 2014, 12:59 PM), https:// ww w. techdirt.com/articles/20140522 /0619

3627322/vimeo-pressured-into-setting-up-its-own-content-id.shtml [http://perma.cc/XY

72-CY7E]; Michael McWhertor, Twitch Implements YouTube-Like System for Blocking

Copyrighted Audio, POLYGON (Aug. 6, 2014, 6:13 PM), http://www.polygon.com/

2014/8/6/5976565/twitch-music-content-id-dmca [http://perma.cc/E8EX-9ZEP]. Vimeo

and Twitch are just two examples of a UGC platform adopting this technology.

Facebook and SoundCloud both have similar systems as well. Interview with Brandon

Martinez, supra note 23.

“Content owner,” “rights holder,” and “copyright owner” are terms used

interchangeably throughout this note. They are one and the same for purposes of

Content ID.

Katherine Oyama, Why the Digital Millennium Copyright Act Is Working Just

Fine . . . , DIGITAL MUSIC NEWS (Apr. 10, 2014), http://www.digitalmusicnews.com/

permalink/2014/04/10/dmcaworkingjustfine [http://perma.cc/JV7N-7KWW]; Interview with

Brandon Martinez, supra note 23.

See How Content ID Works, supra note 2.

Id.

Carlos Pacheco, YouTube Content ID Handbook—Google, SLIDESHARE

(Dec. 10, 2013), http://www.slideshare.net/carlospacheco74/you-tube-content-id-handbook

[http://perma.cc/2UZ5-2T26].

Interview with Brandon Martinez, supra note 23.

2016] YOU(TUBE), ME, AND CONTENT ID 1281

a policy for a specific piece of content, these policies are applied

automatically when a claim is generated.

Performing a block on a video makes the video unavailable

for viewing in the territories in which the content owner asserts

his rights,

but the video remains viewable in other territories

(unless a rights holder who implements a block asserts worldwide

rights, which would then result in a “takedown”).

Blocking does

not permanently delete the video from YouTube’s databases; it

simply makes it unavailable for viewing.

Monetizing means the video will play with advertisements,

but only in the territories in which the content owner is asserting

its rights.

When the video is selected for monetization, it becomes

available to advertisers as inventory.

The inventory (i.e., each

piece of content) is priced at a certain rate and is usually sold in

an advertising auction.

The ads then appear in or around the

content, and the advertiser usually pays YouTube based upon the

number of impressions the piece of content generates.

The

revenue is then split between the rights holder(s) and YouTube,

and the user usually does not receive any of the monies associated

with the video.

If there is a dispute as to who owns the copyright

of the claimed content, or if YouTube cannot identify all the

escrow until the dispute is resolved.

To be clear, monetization,

just like blocking, only puts advertisements on the user’s video in

territories in which the content owner is asserting its rights.

Finally, tracking a video allows the video to remain

viewable on YouTube, which only tracks viewership and other

statistics and does not assign ads to the video.

Most content

Id.

This is as opposed to the territories where the content owner has the rights.

Pacheco, supra note 34.

Id.

Interview with Brandon Martinez, supra note 23.

Id.

Id. “Impressions” means the number of times an advertisement is shown. See

Impressions: Definition, ADWORDS, https://support.google.com/adw ords/answer/6 320?hl=en

[http://perma.cc/2XCM-J7YW] (last visited June 6, 2016). Ads do not appear every time the

video is watched. Thus, “views” would be an inaccurate measure to determine payment.

“Views” simply means the number of times a video is watched, regardless of whether an

impression was made. See Nick Faber, Advertising Glossary: Pageviews vs Impressions,

BLOGADS (Dec. 12, 2011), http://web.blogads.com /blog/20 11/12/12/adverti sing-glossary-

pageviews-vs-impression s/#axzz3zD5ucRtj [http://perma.cc/R6GA-GHHW].

For a breakdown of the revenue allocation, see infra Section I.D.

Interview with Brandon Martinez, supra note 23.

Id.

Pacheco, supra note 34.

Id.

1282 BROOKLYN LAW REVIEW [Vol. 81:3

owners prefer not to track and will instead take the proactive

approach of either monetizing or blocking a piece of content,

simply because tracking really does not benefit content owners.

If there is an infring ing piece of content not being monetized, it

should be blocked, if for no other reason than because it results in

missed revenue opportunities by diverting engagement away from

monetized content.

Once a policy is applied, the uploader will receive a

notification that the video has been claimed, and the uploader

has to acknowledge whether they agree with the claim. If they

do not, they may dispute the claim, in which case the claim is

put on hold pending further review. The content owner has 30

days to manually review the claim.

There is a fourth, typically nonautomated

option available

to rights holders: performing a takedown

under the Digital

Interview with Brandon Martinez, supra note 23.

Id.

Pacheco, supra note 34; see YouTube’s Joke of a Fair-Use Appeal Process, JWZ,

http://www.jwz.org/blog/2014/10/youtubes-joke-of-a-fair-use-appeal-process/ [http://per ma.cc/

RB7Z-W9GW] (last visited June 6, 2016).

See Stephen McArthur, How to Beat a YouTube ContentID Copyright Claim—

What Every Gamer and MCN Should Know, GAMASUTRA (June 24, 2014, 4:41 PM),

http://gamasutra.com/blog s/Steph enMcArthur/20140624/219589/How_to_Beat_a _YouTube_

ContentID_Copyright_Claim__W hat_every _Gamer_and_MCN_Should_Know.php [http://

perma.cc/2P8R-NEPM] (“[T]akedown notices cannot be automated.”). But see Mike Masnick,

EFF Argues That Automated Bogus DMCA Takedowns Violate the Law and Are Subject to

Sanctions, TECHDIRT (Mar. 8, 2012, 2: 08 PM), https://www.techdirt.com/articles/

20120308/03505018034/eff-argues-that-automated-bogus-dmca-ta kedowns-violate-law-are-

subject-to-sanctions.shtm l [http://perma.cc/4ZTD-3ZN8] (describing automatic takedowns as

“pretty typical”). For purposes of this note, I will assume that takedowns are performed

manually because companies wish to avoid liability for automatic and recklessly submitted

takedown notices. See McArthur, supra; Masnick, supra. I will also assume most takedowns

are performed manually in the wake of Lenz v. Universal Music Corp., a recent Ninth

Circuit decision holding that copyright owners must consider fair use before submitting a

takedown notice. Lenz v. Universal Music Corp., 815 F.3d 1145, 1153 (9th Cir. 2016). More

specifically, the court reiterated a prior holding that a copyright owner must form a

“subjective good faith belief” that a use is unauthorized before submitting a takedown. Id. at

1153. Further, the court issued an amended opinion where

it removed nearly two pages of its original opinion, including its statement that “a

and dicta that “the implementation of computer algorithms appears to be a valid

and good faith middle ground for processing a plethora of content while still

meeting the DMCA’s requirements to somehow consider fair use.”

Vivian Cheng & Kristen McCallion, Ninth Circuit Issues Amended Opinion in “Dancing

Baby” DMCA Notice-and-Takedown Case, JDSUPRA

BUS. ADVISOR (Apr. 1, 2016),

http://www.jdsupra.com/legalnews/ninth-circuit-issues-amended-opinion-in-90660/ [http://

perma.cc/FYP5-6CW6]. The court’s conscious decision to remove this language effectively

extinguishes the viability of any automatic takedown system. It shows that the court is

skeptical about the ability of computers to perform a good faith fair use analysis or complete

a searching/intensive inquiry.

Pacheco, supra note 34.

2016] YOU(TUBE), ME, AND CONTENT ID 1283

Millennium Copyright Act (DMCA).

The DMCA provides a

“notice-and-takedow n” process by which rights hold ers can

request removal of content from a service provider.

Choosing to

perform a takedown is a legal action that sends the uploader a

DMCA notice stating that the content owner believes a piece of

content to be infringing.

If the uploader takes no further action,

such as filing a counter notice, the uploader is issued a copyright

strike to her account.

If an uploader receives three copyright

strikes, her account will be deactivated.

A takedown will result

in a video being removed from all of YouTube, regardless of the

jurisdiction in which the owner is asserting her rights.

Content ID’s powerful technology can generate partial

matches of uploaded content that is as short as a few seconds.

The program is also versatile because if a content owner has

provided a reference file that contains portions of public domain

material or content licensed from another rights holder, Content

ID’s filters can be adjusted to claim only the original content in

that reference file.

Further, Content ID can generate separate

matches for multiple content holders based on who has rights to

17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 512, 701, 1201-1205, 1301-

1332, 4001 (2012).

Ken Liu, The DMCA Takedown Notice Demystified, SFWA,

http://www.sfwa.org/2013/03/the- dmca-takedown-noti ce-demystified / [http://perma.cc/QKU6

-5R7X] (last visited June 6, 2016). A service provider is defined by the DMCA as “a provider

of onlin e services or network access, or the operator of facilities therefor.” 17 U.S.C.

§ 512(k)(1)(b). This is quite an expansive definition that encompasses traditional websites

such as YouTube, Facebook, and Twitter, as well as newer apps such as Snapchat.

Furthermore, a serv ice provider must act expeditiously to remove access to allegedly

infringing material, or may face liability. 17 U.S.C. § 512(c)(1)(A)(iii).

Pacheco, supra note 34. See generally 17 U.S.C. § 512(c)(3) (listing the

elements of an effective DMCA notification). A takedown notice is submitted under

penalty of perjury and can expose a content owner to civil liability if submitted

frivolously. See McArthur, supra note 52.

Id.

2814000?hl=en [http://perma.cc/7UWG-LWS2] (last visited June 6, 2016).

Pacheco, supra note 34.

Interview with Brandon Martinez, supra note 23. See generally McArthur,

supra note 52. A copyright claim on any tiny portion of a gamer’s video threatens the entire

video. It does not matter that the flagged, copyrighted content is only a few seconds of a long

video. For example, TotalBiscuit (a popular game reviewer and Let’s Player) uploaded a

three-hour video that included a one minute trailer from a Nintendo Pokémon game, and

the entire video could not be monetized because of that one minute of copyrighted content.

Id.; Stephen Totilo, YouTube Pulls Official The Last of Us Trailer Due to ‘Copyright Claim,’

OTAKU (Dec. 13, 2011, 7:08 PM), http://kotaku.com/5867852/youtube-pull s-officia l-the-last-

of-us-trailer-due-to-copyright-claim [http://perma.cc/C9KZ-LQW2].

For example, if Lil Wayne legally samples an Al Green recording on one of his

tracks, and a user uploads a video with the Lil Wayne track, Content ID will not generate a

has already licensed the Al Green master. Rather, it will only generate a claim on behalf of

Lil Wayne.

1284 BROOKLYN LAW REVIEW [Vol. 81:3

specific portions of the uploaded content (whether it be the audio

or the visual). YouTube does not tolerate abuse of the Content

ID system to make frivolous infringement claims.

There are

strict guidelines in place for content owners that use Content ID,

and “[c]ontent owners who repeatedly make erroneous claims

can have their Content ID access disabled and their partnership

with YouTube terminated.”

Content ID access is not to be

taken lightly.

Not everyone who is a content owner qualifies for

Content ID. Those approved to use Content ID “must own

exclusive rights to a substantial body of original material that is

frequently uploaded by the YouTube user community.”

For

example, corporations like Universal and Sony, as well as huge

content aggregators ranging from Viacom to Telemundo, are

approved to use Content ID. Practically any entity that has a

“substantial body” of content will qualify for and utilize Content

ID.

Someone with one or two channels would not qualify, as

they would lack a substantial body of original material

frequently uploaded to YouTube.

B. Reasons for Content ID’s Implementation

Multiple factors influenced the development of Content

ID. The most important was likely section 512 of the DMCA,

which created a “safe harbor”

from liability for online service

providers that host user-generated content if they comply with

special “notice and takedown provisions.”

The exact provision

that YouTube follows in order to avoid infringement liability is

section 512(c), entitled “Information Residing on Systems or

See McArthur, supra note 52.

How Content ID Works, supra note 2. In fact, YouTube has reaffirmed their

staunch commitment to ensu re that Content ID is not abused by recently announcing “that

it would pay the legal bills of certain users who are hit with frivolous Digital Millennium

doctrine.” Bill Donahue, YouTube Will Defend Users Against Unfair DMCA Takedowns,

AW360 (Nov. 19, 2015, 4:23 PM), http://www.law360.com/media/articles/729422?

nl_pk=9c836e32-5578-4c4b-9 66f-f32310a54 235&utm_source=newsletter&utm_m edium=em

ail&utm_campaign=media [http://perma.cc/Q45W-PWRN].

How Content ID Works, supra note 2.

Id.

17 U.S.C. § 512 (2012).

DMCA Safe Harbor, LUMEN, https://www.lumendatabase.org/topics/14

[http://perma.cc/9YWK-P2ZN] (last visited June 6, 2016).

The No tice and Take Down Provisio ns of the DMCA , IVANHOF FMAN,

http://www.ivanhoffman.com/dmca.html [http://perma.cc/98U7-NVGX] (las t visited

June 6, 2016).

2016] YOU(TUBE), ME, AND CONTENT ID 1285

Networks At Direction of Users.”

This provision requires that

“upon notification of claimed in fringement . . . , [the service

provider] responds expeditiously to remove, or disable access to,

the material that is claimed to be infringing or to be the subject of

infringing activity.”

Section 512(c) also requires that a service

provider designate an agent to receive notifications of claimed

infringemen t

and comply with discrete elements of the

notification, which must be a written communication embodying,

among other things, a statement that the content owner possesses

a good faith belief that its content is being infringed.

Content

ID’s system is robust and possesses the infrastructure to handle

these notices in order to comply with section 512(c).

Content ID was also intended to placate disgruntled

content owners who, notwithstanding the DMCA’s framework,

had difficulty managing their content and believed YouTube was

committing copyright infringement despite its apparent compliance

with the DMCA. A mid-2000s showdown between YouTube and

Viacom, a huge content aggregator, is what some believe may have

pushed YouTube to develop Content ID.

The case settled, but its

effects on the UGC landscape have been everlasting.

C. Content Owners Prefer Monetization over Takedowns

Content providers monetize far more than they perform

takedowns or blocks for a variety of reasons. First, monetization

is preferred because takedowns must be done manually, while

17 U.S.C. § 512( c).

Id. § 512(c)(1)(C).

Id. § 512(c)(2).

Id. § 512(c)(3)(A). The elements of the notification are:

(i) A physical or electronic signature of a person authorized to act on behalf of

the owner of an exclusive right that is allegedly infringed. (ii) Identification of

the copyrighted work claimed to have been infringed . . . . (iii) Identification of

the material that is claimed to be infringing or to be the subject of infringing

activity . . . and information reasonably sufficient to permit the service provider

to locate the material. (iv) Information reasonably sufficient to permit the

service provider to contact the complaining party. . . . (v) A statement that the

complaining party has a good faith belief that use of the material in the manner

complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under

penalty of perjury, that the complaining party is authorized to act on behalf of

the owner of an exclusive right that is allegedly infringed.

Id.

See Kevin J. Delaney, YouTube to Test Software to Ease Licensing Fights,

WALL ST. J. (June 12, 2007, 11:59 PM), http://online.wsj.com/news/articles/SB11816

1295626932114?mg=reno64-wsj&url=http%3A%2 F%2Fonline.wsj.com%2Fart icle%2FSB 11

8161295626932114.html [http://perma.cc/8NN6-7FPL].

1286 BROOKLYN LAW REVIEW [Vol. 81:3

monetizat ion can be automatic. The DMCA takedown framework

puts the onus on copyright holders to patrol their content on user-

generated content platforms, and there is no duty for service

providers to seek out infringing content.

Although Content ID is

immensely helpful because it automatically recognizes instances

of infringement, DMCA takedowns must nonetheless be done

manually by a human sitting at a computer—a highly cumbersome

process when one is dealing with a seemingly unlimited amount of

content.

Unlike takedowns, Content ID can instantly monetize

videos after they are claimed and immediately accumulate

revenue for rights holders.

Second, monetizat ion is preferable to takedowns because

users will repost infringing content no matter what. Many users

find ways to shirk the Content ID technology, such as creating

mirror images of visuals or changing the musical key of an audio

clip so that it passes through the filters undetected.

It is likely

that in many scenarios, in the time it takes to perform a

takedown, the content has been reposted numerous times.

Endless resources are needed to carry out a “whack-a-mole”

strategy to counteract this problem, and most copyright holders

embrace monetization instead.

Another reason why monetization is preferred is because

performing takedowns on user videos creates bad publicity for

music artists, as well as content owners in general.

Fans

naturally do not like it when their cover of their favorite artist is

removed permanently from YouTube. Many fans are laypeople

who do not understand why they cannot use or access certain

See Masnick, supra note 29.

See Interview with Brandon Martinez, supra note 23.

Id.

See, e.g., Fun with YouTube’s Audio Content ID System, SCOTT SMITELLI (Apr.

19, 2009), http://www.scottsmitelli.com/articles/youtube-audio-content-id [http://perma.cc/

7E46-GZXB] (modifying a copyrighted audio file, including through pitch alteration, time

alteration, time chunks, resampling, and adding noise, to see whether Content ID’s filters

detected the recording); My Parody and How to Avoid YouTube Content ID Detection, PAUL

NABIL MATTHIS (May 21, 2014), http://paulmatthis.com/blog/my-parody-and-how-to-avoid-

youtube-content-id-det ection [http://perma.cc/LL39- 6PTA].

Stephen Carlisle, Copyright Blog Update: Meet the New and Improved

“WhackAMole,” NOVA SOUTHEASTERN UNIV. (Oct. 30, 2014), http://copyright.n ova.edu/

blog-update-whack-a-mole/ [http://perma.cc/53GL-EWGN].

Compare Timothy Geigner, Sega Goes Nuclear on YouTube Videos of Old

Shining Force Game, TECHDIRT (Dec. 7, 2012, 7:32 AM), https://www.techdirt.com/articles/

20121206/17321021296/sega-goes-nuclear-youtube-videos-old-shining-force-game.shtml

[http://perma.cc/SH8V-9A2R] (discussing Sega fans’ annoyance with excessive takedowns of

gaming clips), with Jacqui Cheng, Musician Angry After BPI Forces YouTube to Pull His

Video, ARS TECHNICA (July 23, 2009), http://arstechnica.com/business/2009/07/musician-has-

strong-words-after-youtube-vid eo-tak edown/ [http://perma.cc/EV7X-BK8J] (“When things

like this happen and the artists get angry, the entire system gets bad PR . . . .”).

2016] YOU(TUBE), ME, AND CONTENT ID 1287

content.

They will receive a notice to the effect of, “Your video

may include clips that are owned by a third party,” without much

further explanation.

Fans are led to believe that it is the artist’s

fault, and they do not understand the underlying reasons why

their content is being claimed. In fact, fans are so ill-inform ed

about the reposting of copyrighted material that many believe

writing “No Copyright Intended” or cutting and pasting fair use

provisions from the 1976 Copyright Act verbatim into the

description box will absolve them from any copyright liability or

claims on their video.

This confusion and lack of explanation

results in an eroded user exper ienc e. Fans who don’t know any

better may believe that the claim came at the direction of the

artist, when this could very well be a policy of the artist’s record

label that is beyond the artist’s control. And the sting of getting

blocked is only magnified when the blocked content is an artist

tribute video, because precluding a fan from expressing her

adoration of the artist amounts to a slap in the face. Thus, it comes

as no surprise that fans may leave the side of a once-loved artist

when there are many copyright claims filed on the artist’s content.

The fans may leave YouTube altogether, disgruntled and disgusted

by their poor user experience, and take their content to another site

that does not have a system akin to Content ID in place or that is

patrolled less stringently than YouTube. All in all, it is bad for

business for both the content owner and the service provider.

Finally, videos that are taken down will never produce

any revenue for rights holders or YouTube. The only way to

generate revenue is to monetize the content and allow it to

remain on YouTu be. Rights holders are benefittin g more than

ever from streaming royalties.

In fact, in 2014, stre aming

royalties made up for the current decline in digital downloads.

YouTube has an entire help module dedicated to teaching users about

youtube/answer/2797466?hl=en&ref_topic=2778546 [http://perma.cc/3LDP-9ZT5] (last visited

June 6, 2016).

YouTube’s Joke of a Fair-Use Appeal Process, supra note 51.

Andy Baio, No Copyright Inte nd ed, WAXY (Dec. 9, 2011), http://wa xy.org/

2011/12/no_copyright_intended/ [http://perma.cc/X8F9-AHH8].

See generally I Posted a Video That Had a Little Snippet of Rihanna’s Song

“We Found Love” and Youtube Took it Down!, YOUTUBE HELP FORUM,

https://produc tf orums.google.com/forum/#!topic/youtube/tqbuMCA3hKE [http://perma.c c/

W7NA-AMZN] (last visited June 6, 2016) (“So I posted a video that had a little part of

Rihanna’s song ‘We Found Love’ and I truly DO NOT understand why Youtube took it

down! Why can’t I post a video with a song in it?! All the other videos that go onto

Youtube do the same and they don’t get taken down due to copyright issues! It clearly

makes no sense at all and it has pissed me off!”).

See Masnick, supra note 29.

Karp, supra note 12.

1288 BROOKLYN LAW REVIEW [Vol. 81:3

While people may not think of it as such, YouTube is one of the

top streaming content destinations

and streaming music

services on the web, existing in the same realm as Spotify,

Apple Music, and Pandora.

Thus, it only makes sense for

rights holders to take advantage of this gigant ic revenue pool.

D. Content ID’s Drawbacks

There is no question that Content ID has positively

impacted rights holders by revolutionizing the management and

monetization of copyrighted content. There are, however, various

drawbacks to Content ID’s current system. Among these are (1)

the lack of direct accessibility to Content ID for small-market

musicians, (2) inequitable revenue allocation, (3) Content ID’s

inability to recognize third-party licensing arrangements, (4) ex

post ratification of infringing uses, and (5) the cumbersome and

frustrating user appeals process.

First, only rights holders with a substantial amount of

content on YouTube may sign up for Content ID, leaving

legitimate, small-market artists out of the equation.

songwriter or artist with a single YouTube channel would not be

able to regist er to manage and patrol their content directly

through Content ID. Oftentimes, songwriters and artists have

transferred the rights in their compositions or sound recordings to

music publishers or record labels.

Because music publishers and

record labels are aggregators of large amounts of content, they

Jeremy Scott, YouTube 2nd Most Popular Website With 790 Million Unique

Monthly Visitors, REELSEO (Aug. 25, 2011, 8:0 9 AM), http://www.reelseo.com/youtube-

790-million-uniques/ [http://perma.cc/3J2D-656V].

Stuart Dredge, Adele’s Manager: ‘Streaming’s the Future, Whether People Like

it or Not,’ GUARDIAN (Nov. 6, 2014, 11:05 EST), http://www.theguardian.com/technology/20

14/nov/06/adele-manager-jonathan-dickens- streaming-spotify [http://perma.cc/TX39-XF 8A]

(“[B]ut the biggest music streamer out there is YouTube, without a doubt . . . .” (quoting

Jonathan Dickins, Manager of Adele and founder of September Management)).

How Content ID Works, supra note 2.

See Paul Resnikoff, Now You Know Everything About Music Publishing . . . ,

DIGITAL MUSIC NEWS (Feb. 28, 2014), http://www.digitalmusicnews.com/2014/02/

28/understandpublishing/ [http://perma.cc/7TFL-3ETE] (“However, recordings are typically

made in assignment of record labels, whom have negotiated deals with both the artist and

producer in which they transfer ownership of their copyright to the label in exchange for

royalty payments. . . . The composition, made by the writers, is typically represented by a

publisher. The sound recording, made by the performing artist and producer, is typically

represented by a label.”); Scott Rubin, Music Publishing: Everything You Wanted to Know

(But Were Afraid to Ask), SOS (Dec. 2005), http://www.soundonsound.com/sos/dec05/

articles/allaboutpublishing.htm [http://perma.cc/3Y6D-V5M9] (“If you want to make money

as a songwriter, composer or lyricist, the obvious answer is to find yourself a publisher.”).

2016] YOU(TUBE), ME, AND CONTENT ID 1289

easily qualify for Content ID.

Thus, artists without labels or

publishing deals are out of luck. Artists that are not fortunate

enough to sign a record or publishing deal, however, may be able

to sign up with a multichannel network (MCN) as an alternative,

but again this requires a certain level of subscribership that cuts

out the “little guy.” MCNs are content aggregators, and some

function almost as miniature record labels that live on YouTube.

MCNs will monitor and assert content owners’ rights on

YouTube, and many artists partner with MCNs for help with

overall YouTube strategy and revenue maximization.

Second, the royalty pie is somewhat arbitrary, and the

revenue allocation cuts out the owners of compositions. The

way money is distributed on YouTube is about an even split

between YouTube and the content owners (representing the

visual, audio, and underlying composition).

The exact split is

55-45, where YouTube receives 45% of ad revenue and rights

holders receive 55%.

On the rights holder’s side, “10% goes to

the owner of the visual, 30% go es to the owner of the sound

recording, and 15% goes to the owner of the composition.”

These ratios are somewhat arbitrary. For example, songwriters

get paid half of what sound recording owners receive. Owners

of compositions have expressed a general sentiment that they

Music labels range from the major record labels (Sony, Warner Music

Group, and Universal) to independent labels like Glassnote Records (Mumford & Sons)

and Big Machine Records (Taylor Swift). See Heather McDonald, Big Four Record

Labels, ABOUT CAREERS (Dec. 16, 2014), http://musicians.about.com/od/music

industrybasics/g/BigFour.htm [http://perma.cc/5MCC-XGEN]; Ed Christman, Could the

Big Machine, Glassnote Deals with Clear Channel Set Market Rate for Radio

Royalties?, BILLBOARD (Mar. 6, 2013, 2:50 PM), http://www.billboard.com/biz/

articles/news/1551224/could-the-big- machine-glassnote-deals-with-clear-channel-set-m

arket-rate [http://perma.cc/DZ5J-99BE] (mentioning that independent labels such as

Glassnote Records and Big Machine Records have signed deals with large radio

networks). Music publishers also range from major publishers (Sony, WarnerChappell,

Universal) to independent publishers like SONGS Music Publishing (Lorde, The

Weeknd, Diplo). See Rubin, supra note 89; SONGS M

USIC PUBLISHING, https://

www.songspub.com/ [http://perma.cc/UA5H-V8ES] (last visited June 6, 2016);

Songwriters, SONGS MUSIC PUBLISHING, https://www.songspub.com/Songwriters

[http://perma.cc/SPN6-XPXK] (last visited June 6, 2016).

Interview with Brandon Martinez, supra note 23.

Id.

Todd Spangler, YouTube Standardizes Ad-Revenue Split for All Partners, but

Offers Upside Potential, VARIETY (Nov. 1, 2013, 4:39 PM), http://variety.com/

2013/digital/news/youtube- standardizes-ad-rev enue-split-for-al l-partners-but- offers-upside-

potential-120078 6223/ [http://perma.cc/S3ZX-DZBF].

Id.; see Hampp, supra note 23. Content owners are generally disgruntled

over this royalty split arrangement because it is not in line with Apple’s 70/30

arrangement, where content owners are paid 70% of profits. YouTube justifies this split

because of the resources, bandwidth, servers, and maintenance that is spent on

maintaining its system. Spangler, supra note 93.

Interview with Brandon Martinez, supra note 23.

1290 BROOKLYN LAW REVIEW [Vol. 81:3

are underpaid, not only on YouTube, but across streaming

music services.

The inequity does not end there. Not only are owners of

compositions stiffed, but so are users. Returning to the wedding

video example: your cousin uploads her wedding video backed by

Bruno Mars’s latest hit. Your cousin’s video is comprised of Mars’s

recording and composition and your cousin’s visual of her

wedding. In theory, your cousin should be entitled to 10% of the

revenue for her visual, and the other 45% should go to Bruno

Mars’s publisher and record label. Yet your cousin will most likely

never see any money.

Perhaps it is because amateur users like

your cousin do not have access to Content ID to be able to

properly monetize the visual component of their videos, or

perhaps YouTube feels that as a penalty for infringing on the

rights holder’s copyrights in the first place, your cousin’s 10% of

the pie should be split by the other rights holders.

The impact is magnified when it comes to the amateur

cover artist because he is cut out of two revenue streams—the

visual (10%) and the sound recording (30%).

Although users

have the option to monetize their videos from their channel

dashboard, this option does not let a user assert his rights as to

specific copyrightable components, and the owner must own all

the content in the video to see any money from it.

And even if

the revenue from the visual or sound recording of a user’s video

is collec ted on behalf of the user and held in escrow, it most

likely would only remain in escrow for a limited period of time

before it is absorbed by YouTube.

100

Third, Content ID is unable to account for third-party

licensing agreements.

101

YouTube has no way of knowing whether

a user has precleared his use by licensing a master recording or

composition directly from a record label, music publisher, or some

other third party,

102

because their respective licensing databases

See David Israelite, Future of Streaming Music Must Include Fairness for

Songwriters, FOX NEWS OPINION (June 26, 2014), http://www.foxnews.com/opinion/2014/

06/26/future-streaming-music-must-include-fairness-for-songwriters.html [http://perma.cc/

FM9T-2PYU].

Interview with Brandon Martinez, supra note 23.

Id.

100

Id. For example, SoundExchange, the statutorily created body that collects

digital performance royalties for sound recordings, typically absorbs royalties that

remain undistributed after three years. SOUNDEXCHANGE, SOUNDEXCHANGE ANNUAL

REPORT FOR 2013, at 4 (20 13), http:// www.soundexchange.com/wp-content/uploads/

2014/06/2013-SoundExchange-Fiscal-Report.pdf [http://perma.cc/EU7U-UVGL].

101

Interview with Brandon Martinez, supra note 23.

102

Id.

2016] YOU(TUBE), ME, AND CONTENT ID 1291

do not communicate with YouTube.

103

For example, a cover artist

who wishes to post a Sam Smith cover could go to Sam Smith’s

publishers to license the use of the composition for a YouTube

video. Nevertheless, the cover artist’s video could be claimed by

the composition owner as if the content were not licensed at all—a

patently unfair result.

104

Users must essentially overcome the

presumption that they have not licensed the content—and to

make matters worse, they must overcome this presumption via

the cumbersome user appeals process discussed below, where the

rights holder is in the driver’s seat. There are companies that

specialize in issuing licenses for master recordings and

compositions for digital video distribution,

105

but they do not

communicate to YouTube information about who and what they

license.

106

The only way that YouTube knows whether content has

been licensed properly is if it is licensed on-platform from small,

precleared music and sample libraries that YouTube itself has

made available.

107

Because there is no way of knowing whether a

use is licensed, Content ID discourages users from obtaining

licenses in the first place. The policy is likely a reflection of the

general sentiment among consumers that content is “free” and no

license is ever necessary, because the worst that can happen is a

108

Fourth, Content ID is designed to ratify infringing use; it

is an ex post enforcement tool.

109

This is in opposition to ex ante

enforcement, where the user obtains a license before using the

copyrighted content. In a perfect world, intellectual property is

licensed before the use occurs. In reality, rarely if ever do users

103

Id.

104

YouTube is putting somewhat of a bandage on the situation via a special

covers progra m that allows cover artist to receive the revenue from their videos, but

that is currently in a limited-rollout beta phase. Id.

105

See, e.g., AUDIOSOCKET, https://www.audiosocket.com/ [http://perma.cc/T3EK-

LJYV] (last visited June 6, 2016); RUMBLEFISH, http://rumblefish.com/ [http://perma.cc/

K6MX-SCSB] (last visited June 6, 2016); Ryan Lawler, Rumblefish’s Friendly Music

Relaunches With 750k Songs, GIGAOM (Mar. 16, 2012, 10:22 AM), https://

gigaom.com/2012/03/16/rumblefish-friendly-music- relaunch/ [http://perma.cc/B8TF-B3MK].

106

Interview with Brandon Martinez, supra note 23.

107

Jacob Kastrenakes, YouTube Launches Library of Free Music That Anyone

Can Use, VERGE (Sept. 25, 2013, 10:12 AM), http://www.theverge.com/2013/9/25/

4769332/youtube-audio-library-launches-150-royalty-free-songs [http://perma.cc/QWN5

-4Y7F]; see also Audio Library, YOUTUBE, https://www.youtube.com/audiolibrary/music

[http://perma.cc/D4TG-Y9AX] (last visited June 6, 2016) (containing the YouTube audio

library).

108

There is some penalty, although not criminal: once the user has

accumulated three strikes, the user loses his or her YouTube account. Copyright Strike

Basics, supra no te 58.

109

See generally Arsham, supra note 13 (defining ex post and ex ante

enforcement of the copyright law, and discussing the pros and cons of each).

1292 BROOKLYN LAW REVIEW [Vol. 81:3

obtain licenses prior to uploading content because again, it is so

ingrained in users’ minds that they can post anything they want.

It is a persistent issue that plagues rights holders, as it requires

them to constantly patrol content instead of knowing that uses

are precleared and accounted for beforehand. Further, this

phenomenon is bad for content owners because they cannot

monetize views before the video is claim ed. Thus, in the time it

takes content owners to track down infringing videos, they miss

out on key revenue opportunities, especially because many videos

garner the most engagement in the few days after they are

initially uploaded.

110

This problem may be bigger than Content ID

itself, perhaps reflecting a general shift from preclearing rights to

ratification of infringement. In other words, it is an “upload first,

assess later” paradigm, and the law must adapt to this reality, as

expansion of the compulsory license would alleviate these issues.

Finally, Content ID’s cumbersom e appeals process is a

headache that users must undergo when disputing claims. It

negatively affects content owners as well. When an upload is

matched against copyrighted content, the user has the ability to

file a dispute with YouTube against the claim by saying that it is

the user’s original, wholly owned content, that it is a fair use,

111

that the use has been licensed.

112

When a user disputes the claim,

the claim goes from active to pending, and the match policy

(whether it be block, monetize, or track) is lifted temporarily until

the rights holder has assessed the dispute.

113

At that point, the

rights holder must decide within 30 days whether to release the

claim, reinstate the claim, or perform a taked own.

114

If the rights

110

See Chris Atkinson, A Quarter of Branded Video Shares Happen in the

First Three Days: Unruly’s Social Diffusion Curve, REELSEO (Apr. 23, 2013),

http://www.reelseo.com/quarter-video-shar es-happen-days-unrulys-social-diffusion-curve/

[http://perma.cc/R5WT-PTBL].

111

A fair use is

any copying of copyrighted material done for a limited and “transformative”

purpose, such as to comment upon, criticize, or parody a copyrighted work.

Such uses can be done without permission from the copyright owner. In other

words, fair use is a defense against a claim of copyright infringement. If [a] use

qualifies as a fair use, then it [is] not []considered an illegal infringement. So

what is a “transformative” use? . . . . [T]his definition [is] ambiguous [and]

vague . . . . [M]illions of dollars in legal fees have been spent attempting to

define what qualifies as a fair use. There are no hard-and-fas t rules, only

general rules and varied court decisions, because the judges and lawmakers

who created the fair use exception did not want to limit its definition.

Rich Stim, What Is Fair Use?, S

TANFORD UNIV. LIBR., http://fairuse.stanford.edu/overview/

fair-use/what-is-fair-use/ [http://perma.cc/9X36-BYSS] (last updated Mar. 11, 2014, 4:32 PM).

112

YouTube’s Joke of a Fair-Use Appeal Process, supra note 51.

113

Pacheco, supra note 34.

114

Id.

2016] YOU(TUBE), ME, AND CONTENT ID 1293

holder does nothing, the claim on the content is released.

115

If the

claim is reinstated, users in good copyright standing

116

who have

provided an address and phone number may appeal the

reinstatement, shifting the burden back to the rights holder to

either release the claim or issue a takedown.

117

There are a few drawbacks to this user appea ls process.

First, the rights holder must manually review the dispute,

meaning that a human being representing the rights holder must

determine whether the dispute is valid.

118

More often than not,

users will dispute the claim because no user wants to have their

video blocked.

119

Thus, tens of thousands of claims stack up daily

that must be manually reviewed—an impossible task.

120

Many

claims are released because they are not reviewed within the 30-

day window, and content owners lose revenue as a result.

121

Next, those manually reviewing the content in the user

appeals process are often not qualified to do so, resulting in

abusive and mismanaged claims practices.

122

If a user disputes

a claim on a fair use basis, the decision of whether to honor the

dispute rests largely in the hands of interns and other

115

Id.

116

Good standing means that a user account must have “[n]o Community

Guidelines strikes, [n]o copyright strik es, [and] [n]o more than one video blocked worldwide

by Content ID.” Keep Your YouTube Account in Good Standing, YOUTUBE, https://

support.google.com/youtube/answer/2797387?hl=en [http://perma.cc/9V74-GZBU] (last visited

June 6, 2016).

117

Id.; See Frederic Lardinois, YouTube Changes Its Content ID Appeals

Process, TECHCRUNCH (Oct. 3, 2012), http://techcrunch.com/2012/10/03/youtube-changes-

its-content-id-appeals-process/ [http://perma.cc/WM2Z-7JC4] ; Baio, supra note 18. For a

visualization of the claim and disputes process, see Disputes, YOUTUBE, https://support.

google.com/youtube/answer/6085539?hl=en&ref_topic=6084219 [http://perma.cc/CX42-6XM2]

(last visited June 6, 2016).

118

Interview with Brandon Martinez, supra note 23.

119

Id.

120

Id.

121

Id.

122

See Orchard Uses UNPAID INTERNS to Handle Content ID Related

Disputes, YOUTUBE (July 29, 2013), https://productf orum s.goog le.com/forum/#!topic

/youtube/10XE-nsJbaM [http://perma.cc/MBL3-7V57] [hereinafter Orchard]. In fact,

drawing from personal experience, I worked extensively in Content ID as an intern at

several large companies and made countless final judgments on submitted user disputes,

many of which involved fair use. What constitutes fair use is not a simple matter, as even

the most astute lawyers and judges struggle to define it. See supra note 109 and

accompanying text. Thus, it is baffling that interns are tasked with making these

decisions on a daily basis. One bit of good news is that a recent Ninth Circuit decision

now requires copyright holders to consider fair use before issuing DMCA takedown

notices. See Lenz v. Universal Music Corp., 801 F.3d 1126, 1132 (9th Cir. 2015). Thus,

rights holders must take more precaution before requesting takedowns, which will likely

assist in curbing abuse and provide a bit of relief to prejudiced users.

1294 BROOKLYN LAW REVIEW [Vol. 81:3

unqualified individuals.

123

This is especially troubling because

these decisions, which necessarily involve questions of fact and

law, happen outside an administrative body or court of law and

are virtually free from any oversight.

124

YouTube cannot even

begin to provide human oversight because their resources are

far too limited to identify and diagnose indiscretions by

innumerable content holders. Also, YouTube prefers to turn a

blind eye and limit its oversight, or else it may be liable for

125

Furthermore, Content ID as a whole heavily favors

126

Rights holders are in a position of power for

regulating user content, as they make the final decision in their

sole discretion about whether to issue a takedown.

127

There is no

hearing or opportunity to present evidenc e to a neutral body.

128

Content owners are the ultimate arbiters, which is troubling

because of the inherent bias that rights holders possess in favor of

protecting their content at all costs.

129

YouTube is also inherently

biased, as it is a corporation with a goal of maximizin g profits for

shareholders, and the more content that is claimed, the more

money YouTube makes. It seems preposterous that fair use

judge, let alone in such large numbers. As a result, the user

appeals method of resolving content disputes is wrought with

123

Orchard, supra note 122; Concord Music Group, YouTube Rights Management

Intern, ENTERTAINMENTCAREERS, http://www.entertainmentcareers.net/Concord-Music-

Group/YouTube-Rights-Management-Intern/job/ 199903/ [http://perma.cc/F7Y7-C2HV] (last

visited June 6, 2016) (posting for a YouTube Rights Management Intern).

124

Philip Daniels & Tyler Malin, Content ID & DMCA Takedowns: What

Creators Need to Know, VIDEOINK (Jan. 3, 2014), http://www.thevideoink.com/

features/voices/content-id-dmca-takedowns-what-creators-need-t o-know/#.VF59x4vF_A4

[http://perma.cc/67K9-F8AR] (“Many argue that the current system seems to skew in

favor of copyright owners. In fact, everything prior to the DMCA takedown notice

required after an appeal is just internal policy and completely extrajudicial—

undoubtedly leaving the vast majority of these potentially important legal arguments

without proper consideration, which is damaging for everyone involved.”).

125

17 U.S.C. § 512 (2012). See generally Viacom Int’l, Inc. v. YouTube, Inc., 676

F.3d 19, 27 (2d Cir. 2012) (discussing that the DMCA provides a “safe harbor” from liability

stemming from copyright infringement for service providers such as YouTube, provided that

they follow certain rules and procedures regarding copyrighted content; the safe harbor can

be forfeited in a variety of circumstances, including if the service provider has actual

knowledge of infringement, and thus, service provider s wish to limit their knowledge when

it comes to specific instances of infringement on their sites).

126

Daniels & Malin, supra note 124.

127

See id. (“[T]he decision to accept or reject a counter-notification is purely

based on the decision of the party that Content ID matched with [the user’s content].”).

128

Jennifer Atkins, Ashley Madison, the DMCA, and the Misuse of Copyright Law,

CLOUDIGY L. (July 29, 2015), http://cloudigylaw.com/ashley-madison-dmca-misuse-

supra note 124.

129

See Daniels & Malin, supra note 124.

2016] YOU(TUBE), ME, AND CONTENT ID 1295

widespread abuse

130

and results in erosion of the user experience.

131

This is grossly unfair to users, and rights holders know it.

132

II. T

HE SECTION 115 COMPULSORY LICENSE

The current section 115 compulsory license for musical

works provides a necessary backdrop against which to evaluate a

compulsory synchronization licensing system. It helps inform our

understanding of how compulsory licensing currently works, what

rights it covers, and how it interacts with YouTube. It also shows

that a compulsory sync license is practically attainable because

Congress has shown its willingness to expand compulsory

licensing for music to encompass new technologies, such as

Internet radio. Finally, the section 115 license serves as a model

for evaluating the pros and cons of compulsory licensing systems.

Generally, a compulsory license allows the use of a

copyrighted work without the consent of the copyright owner,

provided that the user pays royalties and meets certain

conditions.

133

Section 115 of the Copyright Act

134

provides for

compulsory licensing of nondramatic musical works if the work

has been distributed by the copyright owner to the public in the

United States and the licensee complies with the various

provisions of section 115.

135

The compulsory license grants a

licensee the right to “make and distribute phonorecords ” of the

work, and the licensee’s purpose must be to distribute the musical

130

See Tim Cushing, Fair Use Continues to Pay the Price for YouTube’s Direct

Takedown Deal with Universal Music Group, TECHDIRT (July 14, 2014, 2:14 PM),

https://www.techdirt.com/ar ticles/20140706/13381127795/fair-use-con tinues- to-pay-price-yo

utubes-direct-takedown-deal-with-universal-music-group.shtml [http://perma.cc/93V2-

X9QA] (discussing erosion of fair use because of potential abuse of Content ID–type system

on popular music streaming service SoundCloud).

131

Daniels & Malin, supra note 124. Even more troubling is that the only

mechanism Congress provided to combat abuse of the DMCA (and thus, the only way

for a user to have the rights holder’s decision reviewed) is to file a costly section 512(f)

lawsuit, alleging that the rights holder misrepresented that the user content was

infringing. See Amanda Schreyer, Misrepresentation Under the DMCA: The State of the

Law, 25 NYSBA ENT., ARTS, & SPORTS L.J. 72, 72-73 (2014). There have been few

lawsuits filed under section 512(f) because no normal, everyday user has the incentive

to be litigious over a simple cover video. As if costly litigation isn’t bar enough, most

section 512(f) cases settle before making it past the motion to dismiss stage, and the

first time a court ever awarded damages un der this provision was March 2015. Atkins,

supra note 128. Undoubtedly, whether intentional or not, this is a system built to

abuse the “little guy.”

132

See YouTube’s Joke of a Fair-Use Appeal Process, supra note 51.

133

UNITED STATES COPYRIGHT OFFICE, CIRCULAR 73, COMPULSORY LICENSE FOR

MAKING AND DISTRIBUTING PHONORECORDS 3 (2015), http://copyright.gov/circs/circ73.pdf

[http://perma.cc/H4MD-K8A8] [hereinafter COMPULSORY LICENSE].

134

17 U.S.C. § 115 (2012).

135

Id.

1296 BROOKLYN LAW REVIEW [Vol. 81:3

works to the public for private use.

136

Not only are physical goods

included within the scope of section 115, but digital phonorecord

downloads and Internet streaming are included, as well.

137

For

clarity’s sake, the section 115 provisions do not apply to the

performance right—only to reproduction and distribution.

138

To obtain a compulsory license, one must serve notice of

the intention to do so on the copyright owner “before or within

thirty days after making, and before distributing any phonorecords

of the work.”

139

Failure to comply with this provision makes the

act of reproduction or distribution of phonor ecords an infringing

activity. To receive royalties under section 115, the copyright

owner must be identified in the work’s registration in the

140

Statutory royalties are provided for in paragraph (c) of

section 115, which states in relevant part,

[T]he royalty under a compulsory license shall be payable for every

phonorecord made and distributed in accordance with the license. For

this purpose, . . . a phonorecord is considered “distributed” if the person

exercising the compulsory license has voluntarily and permanently

parted with its possession. With respect to each work embodied in the

phonorecord, the royalty shall be either two and three-fourths cents, or

one-half of one cent per minute of playing time or fraction thereof,

whichever amount is larger.

141

Contrary to the above passage, the mechanical-license royalty

rates have been adjusted over the years to reflect changes in

136

Id. Phonorecords are defined by the copyright act as

material objects in which sounds, other than those accompanying a motion

picture or other audiovisual work, are fixed by any method now known or later

developed, and from which the sounds can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or device. The term

“phonorecords” includes the material object in which the sounds are first fixed.

17 U.S.C. § 101 (2012). Phonorecords include digital files such as mp3s. MARY

LAFRANCE, COPYRIGHT IN A NUTSHELL 163 (2d ed. 2011).

137

See Compulsory License for Making and Distributing Phonorecord s, Including

Digital Phonorecord Deliveries, 73 Fed. Reg. 40,802 (July 16, 2008) (to be codified at 37

C.F.R. pts. 201, 255) (“[M]indful of the attempts to develop legislation that would reform

Section 115, the Office now proposes to amend its regulations in a way that would enable

digital music services to utilize the compulsory license to clear all reproduction and

distribution rights in musical works that might be necessary in order to engage in activities

such as the making of full downloads, Limited Downloads, On-Demand streams and non-

interactive streams.” (emphasis added)).

138

17 U.S.C. § 115(a)(1). Section 115 explicitly states that one may obtain a

compulsory license only to “make and distribute phonorecords of the work,” not to

perform it. Id. (emphasis added).

139

37 C.F.R. § 201.18 (2012).

140

17 U.S.C. § 115(c)(1).

141

Id. § 115(c)(2).

2016] YOU(TUBE), ME, AND CONTENT ID 1297

the marketplace and inflation.

142

In fact, the Copyright Royalty

and Distribution Reform Act of 2004 created the Copyright

Royalty Board (CRB), which sets the rates and terms for use of

the section 115 license.

143

Considering the section 115 provisions as applied to

YouTube, the following is a breakdown of the rights a user must

obtain to post a video to YouTube. In the example from the

introduction, where a Bruno Mars recording is synced to a

wedding video, the uploader should obtain the rights to use both

the sound recording from the record label and the composition

from the music publisher. The exclusive rights in the composition

that are implicated by uploading a video to YouTube include the

right to reproduce the work,

144

distribute copies of the work,

145

and

synchronize the work with a visual image.

146

The exclusive rights

implicated in the use of the sound recording include the

reproduction right,

147

the distribution right,

148

and the “master

142

What Are Mechanical Royalty Rates?, HARRY FOX AGENCY,

https://www.harryfox.com/license_music/what_mechanical_royalty_rates.html [http://perma.cc/

EYF6-SQX5] (last visited June 6, 2016).

143

See COMPULSORY LICENSE, supra note 133. The current statutory rate is

the greater of 9.1 cents per song or 1.75 cents per minute of playing time. See

Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, 63 Fed.

Reg. 7288, 7289 (Feb. 13, 1998). This rate has not changed since January 1, 2006. Id.

144

See 17 U.S.C. § 106(1) (2012). The reproduction right is implicated because

the user necessarily makes a copy of the digital file of the recording when uploading it

to YouTube. YouTube is also responsible for paying a royalty for the right to stream the

content. This “streaming” right is a subset of the reproduction right. Jeff Price, Music

Industry Survival Guide, TUNECORE, http://www.tunecore.com/guides/sixrights [http://

perma.cc/Z3AR-M4XJ] (last visited June 6, 2016).

145

See 17 U.S.C. § 106(3). The distribution right is implicated when the user

uploads the video to YouTube, because the content is being published to the world for

public viewing.

146

The synchronization right is neither explicitly mentioned in the current

right is statutorily protected. Indeed, the House Report to the 1976 Act confirms this

conclusion: “[The] exclusive rights, which comprise the so-called ‘bundle of rights’ that is a

Synchronization Right: Business Practices and Legal Realities, 7 C

ARDOZO L. REV. 787, 793-

95 (1986) (footnotes omitted) (quoting H.R. REP. NO. 94-1476 (1976)). There may also be a

performance right involved depending upon what entity is considered to be “performing” the

video and whether individual plays of a video are considered “public” performances for the

purposes of the Copyright Act. The most plausible explanation is that once the user uploads

the content, YouTube itself is the one performing the content from its servers, not the user.

Thus, the user does not have a duty to obtain performance rights from the copyright holder.

This is supported by the fact that YouTube pays performance royalties to performing- rights

organizations before any royalty distributions are made to rights holders. See ASCAP

Members: License Your YouTube Synchs Through NMPA & HFA, ASCAP (Nov. 30, 2011),

http://www.ascap.com/playback/2011/11/action/license-your-youtube.aspx [http://perma.cc/

658R-CF8C] (ASCAP acknowledging that YouTube pays it performance royalties separately

from Content ID revenue).

147

17 U.S.C. § 106( 1).

148

Id. § 106(3).

1298 BROOKLYN LAW REVIEW [Vol. 81:3

use” or sync hronizat ion right.

149

For a cover artist video, it is only

necessary to obtain the rights implicated in the use of the

composition, because the cover artist provides his own original

sound recording of his performance of the musical composition.

Section 115 only provides for the licensing of musical

compositions and not for sound recordings.

150

In the Bruno Mars

wedding video hypothetical, then, the user can use the section 115

license to obtain the reproduction and distribution rights for the

composition without the publisher’s consent, but the user must

obtain separate permission to use the sound recording as well.

Further, even if a user were to obtain a section 115

license for the use of the composition, the current section 115

license does not go far enough to clear all the rights necessary to

fully exploit the musical composition on YouTube. Section 115

only provides for the reproduction and distribution rights, but

not the synchronization right.

151

This right must then be

obtained separately from the owner of the composition in order

to cover the use of the composition on YouTube.

152

These myriad

restrictions and regulations beg the question: How is it possible

for a layperson to figure out and understand the patchwork of

rights that are necessary to post a video to YouTube without

being susceptible to liability for copyright infringement?

In addition to section 115, section 114 of the Copyright Act

creates a compulsory license for “non-interactive services” to

digitally perform phonorecords.

153

The license grants qualifying

services the ability to perform sound recordings (i.e., broadcast

149

How to Acquire Music for Films, supra note 15.

150

Id. at 2.

151

Modifications in the Copyright Act of 1976 make clear that section 115 does not

cover the “synchronization” right. This is because only the reproduction of phonorecords (not

audiovisual works) is covered under the compulsory license. 17 U.S.C. § 115 (a)(1) (2012)

(“When phonorecords of a nondramatic musical work have been distributed to the public in

the United States under the authority of the copyright owner, any other person . . . may, by

complying with the provisions of this section, obtain a compulsory license to make and

distribute phonorecords of the work.”). See supra note 133 for a discussion of what a

phonorecord is.

152

Furthermore, if it is assumed that users are the ones publicly performing the

composition on YouTube and are thus responsib le for obtaining performance rights, the

section 115 license would fail to cover this as well. See 17 U.S.C. § 115 (a)(1). Moreover,

assuming users are publicly performing the content could preclude use of the section 115

license altogether, as section 115 only provides for licenses for reproduction and distribution

of phonorecord s to the public for private use. A public performance on a public platform is

probably not a private use. An alternate theory is that the user is not responsible for the

performance right because each time a video is performed on YouTube, it is a private

performance that an individual, unique user requests, most likely in the privacy of his own

home. In that case, the section 115 license would cover the distribution right.

153

17 U.S.C. § 114 (2012); Compulsory Licensing Provisions, DIMA, http://

www.digmedia.org/issues-and-policy/copyright-and-royalties/140 -compulsory-licensing-

provisions [http://perma.cc/BE8M-2Z6E] (last visited June 6, 2016).

2016] YOU(TUBE), ME, AND CONTENT ID 1299

them across the Internet) at a per stream rate determined by the

CRB. Noninteractive services include Pandora, Sirius XM, and

any other streaming services where users can only dial up a

station or playlist but not specific songs.

154

YouTube is not

considered a noninteractive service because users have the ability

to select any piece of content for viewing on the platform at any

time.

155

Although YouTube does not fall within its scope,

156

section

114 is nonetheless important, because it evinces Congress’s

willingness to expand the reach of the compulsory license. It

shows that we are closer than we think to compulsory sync

licensing because Congress has recognized the specific need for

compulsory licensing on other streaming services.

Many commentators have criticiz ed compulsory licensing

on various grounds.

157

One argument is that the purpose of the

law seems inconsistent with the policy behind copyright because

it “create[s] a mandatory non-negotiable contract where the

property owner is forced to give virtually unlimited use of his

154

Ken Consor, The 2 Types of Streaming Royalties & How You Can Collect Both,

SONGTRUST (Aug. 4, 2014), http://blog.songtrust.com/p ublishing-tips-2/the- 2- types-of -digital-

music-streams-how-you-can-collect-royalti es-from-both/ [http://perma.cc/R7SJ-WPED]; see

also John Simson, Spotify, Pandora and the Changing Nature of Payments in the Music

Industry, LOMMEN (2012), http://www.lommen.com/pdf/SXSW-2012/Spotify-Pandora-and-

the-Changing-Nature-of-Payment.aspx [http://perma.cc/8QHQ-FXHY].

155

17 U.S.C. § 114( j)(7) defines an “interactive service” as

one that enables a member of the public to receive a transmission of a program

specially created for the recipient, or on request, a transmission of a particular

sound recording, whether or not as part of a program, which is selected by or on

behalf of the recipient. The ability of individuals to request that particular sound

recordings be performed for reception by the public at large, or in the case of a

subscription service, by all subscribers of the service, does not make a service

interactive, if the programming on each channel of the service does not

substantially consist of sound recordings that are performed within 1 hour of the

request or at a time designated by either the transmitting entity or the individual

making such request. If an entity offers both interactive and noninteractive

services (either concurrently or at different times), the noninteractive component

shall not be treated as part of an interactive service.

156

Nonetheless, the section 114 license is an important talking point because it

shows Congress’s willingness to expand the compulsory right and adjust licensing practices

to changes in consumption. Most importantly, it also shows a patchwork of statutorily

granted rights evincing a trend towards a statutorily granted synchronization right. See

infra Section III.E.

157

See generally Jeffrey A. Wakolbinger, Compositions Are Being Sold for a

Song: Proposed Legislation and New Licensing Opportunities Demonstrate the

Unfairness of Compulsory Licensing to Owners of Musical Compositions, 2008 U. ILL. L.

REV. 803 (2008); Theresa M. Bevilacqua, Time to Say Good-Bye to Madonna’s American

Pie: Why Mechanical Compulsory Licensing Should Be Put to Rest, 19 CARDOZO ARTS &

ENT. L.J. 285, 299 (2001); Dina LaPolt et al., A Response to Professor Menell: A Remix

Compulsory License Is Not Justified, 38 COLUM. J.L. & ARTS 365 (2015); Skyla Mitchell,

Reforming Section 115: Escape from the Byzantine World of Mechanical Licensing, 24

CARDOZO ARTS & ENT. L.J. 1239 (2007).

1300 BROOKLYN LAW REVIEW [Vol. 81:3

work in exchange for a rate he cannot determine.”

158

It seems

constitutionally questionable that the government provides a

mechanism for taking private intellectual property without any

balancing of the copyright owner’s interest.

159

Others have

criticized compulsory licensing on the grounds that it creates a

false price ceiling

160

and that its arbitrary rate-setting procedures

hurt artists by not taking into account the relative value of each

individual piece of intellectual property.

161

Critics have also

argued that compulsory licensing fails to provide an adequate

remedy short of launching a full-blown copyright infringement

lawsuit

162

and that it chills innovation by “ossify[ing] around

existing patterns of use.”

163

These arguments are certainly

justified; however, the myriad benefits of compulsory licensing

outweigh its negatives. Further, the only way that compulsory

licensing “ossifies” around existing patterns of use is if Congress

allows that to happen.

On the other hand, many also support expansion of the

compulsory right.

164

One justification is that in a “remix

culture,”

165

a compulsory licensing regime is the best and most

practical application of the Copyright Act’s protections.

166

Because

producing, chopping up, and remixing music has become seamless

due to the proliferation of desktop audio software, it is more and

158

Bevilacqua, supra note 157, at 299.

159

Id.

160

Jason S. Rooks, Constitutionality of Judicially-Imposed Compulsory

Licenses in Copyright Infringement Cases, 3 J. INTELL. PROP. L. 255, 272 (1995).

161

Bevilacqua, supra note 157, at 302; see MATTHEW SAG, THE PERILS OF

COMPULSORY LICENSES IN COPYRIGHT LAW, http://www.cardozo.yu.edu/sites/default/

files/Sag.Matthew.pdf [http://perma.cc/L8AN-M7YS] (last visited June 6, 2016).

162

This is because the improper or unlicensed use of material under section

115 would be an infringement of the copyright owner’s exclusive rights. See 17 U.S.C.

§§ 501-505 (2012). Costly litigation where there are only pennies at stake (although the

act upon infringement.

163

SAG, su pra note 161.

164

See generally Tyler, supra note 25; Robert M. Vrana, The Remix Artist’s

Catch-22: A Proposal for Compulsory Licensing for Transformative, Sampling-Based

Music, 68 WASH. & L EE L. REV. 811 (2011); James H. Richardson, Create a Compulsory

Licensing Scheme for On-Demand Digital Media Platforms, 31 ENT. & SPORTS LAW.,

Summer 2014, at 9; Ankur Srivastava, The Anti-Competitive Music Industry and the

Case for Compulsory Licensing in the Digital Distribution of Music, 22 TOURO L. REV.

375 (2006); James H. Richardson, The Spotify Paradox: How the Creation of a

Compulsory License Scheme for Streaming On-Demand Music Platforms Can Save the

Music Industry, 22 UCLA ENT. L. REV. 45 (2014).

165

See generally Matt Jessell, Remix Culture: Rethinking What We Call Original

Content, MARKETING LAND (Apr. 30, 2013, 9:45 AM), http://marketingland.com/remix-culture-

rethinking-what-we-call-origina l-conten t-41791 [http://perma.cc/CX4P-C5 PJ] (describing

how the remix culture represents a shift in how we think about what is original, what is not

original, and whether it even matters in the first place).

166

Vrana, supra note 164, at 852.

2016] YOU(TUBE), ME, AND CONTENT ID 1301

more difficult to track music samples and pay rights holders. This

can be confusing when some recordings or remixes include

hundreds of samples of other recordings. It would be a nightmare

to call each label and publisher to clear the rights to every

sample, for every sample of a recording must be licensed, no

matter how short.

167

Compulsory licensing would alleviate the

massive headache and impracticability of clearing all those

samples. Expansion of the compulsory right would also create a

profit incentive for authors of past works to develop new works.

168

Further, Congress has been active and forthcoming in continually

recognizing the need for the expansion of the compulsory right with

section 114 (noninteractive webcasters) and section 111 (secondary

transmissions by cable systems).

169

Finally, developments and

improvements in technology have made possible complicated

licensing schemes that were not feasible in the past.

170

III. T

HE NEED FOR A SPECIAL COMPULSORY SYNCHRONIZATION

LICENSE FOR UGC PLATFORMS

This part discusses several rationales that support the

implementation of a special compulsory synchronization license for

UGC platforms. It also discusses how the implementation of a

compulsory sync license would provide direct solutions to the issues

raised above, and is a natural extension of the current regime.

A. Resolution of Content ID’s Flaws

Many Content ID issues, including the inability of

YouTube to recognize third-party licensing arrangements, the ex

post enforcement of infringement, the cumbersome user appeals

process, and unfair royalty splits would be alleviated by a special

compulsory sync license. Beyond YouTube, it would also alleviate

similar issues on other user-generated content platforms (such as

Facebook) that provide a Content ID–like system for managing

content and improve overall management of copyrighted works by

mandating uniformity across platforms.

167

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir.

2005) (“Get a license or do not sample.”).

168

Vrana, supra note 164, at 853.

169

17 U.S.C. §§ 111, 114 (2012). In 1976, Congress gave cable television companies

compulsory licenses for rebroadcasting content originally aired on a broadcast network, and

in 2002, it extended licensing to “small and noncommercial ‘webcasters.’” Vrana, supra note

164, at 851.

170

Vrana, supra note 164, at 851.

1302 BROOKLYN LAW REVIEW [Vol. 81:3

First, YouTube would be able to recognize third-party

licensing arrangements because a compulsory licensing system

would necessitate a central database/clearinghouse for content.

As described earlier, the system treats those who follow the law

and obtain a license the same as those who upload content they

do not own without first obtaining a license.

171

YouTube does not

have any way of knowing whether rights have been precleared

from a third party and does not currently remit royalties to

these parties. In the case of a cover artist who wishes to derive

revenue from his original visual and sound recording of a

licensed composition, a special compulsory sync license would

allow him to take advantage of his rightful revenue streams. A

compulsory sync license system would have a central database of

licensed uses that communicates and exchanges metadata and

ownership information among UGC platforms, labels, and

publishers, facilitating the free flow of revenue. The third-party

licensing issue would be ameliorated by accounting for licensed

uses in the database.

The proposed licensing scheme would also resolve the

issue of ex post enforcement of infringement (i.e., enforcing

content owners’ rights after an infringement has been committed)

by moving the system back into an ex ante regime, where all uses

are automatically licensed and precleared. This is good for both

users and content holders, because users won’t have to worry about

losing the content they post, and content holders will no longer

bear such a large burden in patrolling their content. This would

allow content owners to focus on other things, such as ensuring

that the correct metadata and royalty split information is attached

to each license so that remittance of royalties happens seamlessly.

A compulsory license would also eliminate the need for the

cumbersome user appeals process that is currently in place.

Content owners would not have a queue of tens of thousands of

disputed uses that require manual clearing, because a license

would alrea dy be granted. This would eliminate manual review

and alleviate the issue of unqualified individuals making

determinations as to whether a piece of content has in fact been

appropriated. If the system finds a match, a license will be issued

and the user will go on without even knowing this has happened.

But the compulsory licensing system is not a panacea for

user appeals; the question of whether the use is “fair” would still

loom. In theory, those invoking fair use would have to be exempt

from the license altogether. This would require some human

171

See supra notes 98-105 and accompanying text.

2016] YOU(TUBE), ME, AND CONTENT ID 1303

action to make a determination as to how the malleable

standard is applied. But compulsory license terms would

conceivably not require any further action on the part of the user

(e.g., paying royalties for the use

172

or fighting the claim to avoid

having a video taken down). Thus, users in most circumstances

would be indifferent as to whether the use is fair or not, because

a compulsory regime would allow users to keep their content

online at no personal consequence to them.

Finally, a compulsory sync license would divide the royalty

pie more fairly by giving composition owners the opportun ity to

grab a bigger, more equitable share of the revenue. It would also

allow Congress another opportunity to consider different metrics

when setting the price of the license. Instead of a flat rate, the

license rate could be based loosely on ad network rates and real-

time shifts in market demand for certain pieces of content.

Advances in technology and mathematical modeling will enable

systems capable of indexing license rates across various ad

networks while taking into account other metrics necessary to

formulate a fairer market value for content. At the very least, a

special compulsory sync license would allow Congress the

opportunity to equalize the current royalty breakdowns that give

owners of musical compositions, namely songwriters and

publishers, the short end of the stick.

A compulsory sync license divides the royalty pie more

fairly by giving users and cover artists the shares of revenue they

deserve. As discussed earlier, users who appropriate a

copyrighted sound recording and composition (such as the

wedding video backed by Bruno Mars) do not see their 10% share

of the revenue from their visual contributions, and cover artists

generally do not see their 40% share of the revenue from the

visual and sound recording contributions.

173

A compulsory sync

license system, however, would allow users to take advantage of

these revenue streams and avoid being penalized for committing

infringemen t. The license would apply automatically, meaning

that no infringement would occur. As a result, the user would not

forfeit his share of the revenue.

172

See infra Section IV.B.

173

See supra Section I.D.

1304 BROOKLYN LAW REVIEW [Vol. 81:3

B. Stronger First Amendment Protections for Web-Based

Content

As discussed above, the oft-invok ed “fair use” defense

174

subject to a lack of diligence and fair ness because it is the

content is infringing. A compulsory license would eliminate this

problem, as the content would remain hosted and publicly

available, fair use or not, because the rights will have already

been cleared.

175

This would strengthen the First Amendment

protections by correcting the current trend of biased and abusive

overcensoring of content by overzealous copyright owners.

176

Further, the DMCA provides that when a takedown

happens, the party whose content was taken down has the

opportunity to file a counter notice.

177

When a user files a counter

notice, access to the removed content cannot be reinstated for a

statutorily provided period of at least 10 business days.

178

This is

quite troubling, because regardless of whether there actually was

an infringement, the content must stay down for at least 10 days.

This result chills free speech and freedom of expression because

fair uses and licensed uses can be censored by a disgruntled and

abusive copyright owner. Those copyright owners, knowing that

the process of adjudicating claims on Content ID is already biased

in their favor, are given further incentive to abuse the system

under the DMCA, knowing full well that even if there is no actual

censored for a minimum of 10 days.

179

To make matters worse, as

discussed above, the only recourse for a user is to file a DMCA

misrepresen tation suit, which is not worth the time, money, or

stress for most, if not all, users.

180

Essentially, the DMCA

singlehandedly imparts mass censorship power to all copyright

174

See supra note 109 and accompanying text for a discussion of fair use.

175

Then the operative question would be whether the content is exempt from

the royalty pool, but that inquiry is ancillary to this discussion.

176

See generally Tiffany Rad & Christopher Mooney, The DMCA & ACTA vs.

Academic & Professional Research: How Misuse of This Intellectual Property Legislation

Chills Research, Disclosure, and Innovation, https://media.blackhat.com /bh-us-10/

presentations/Rad/Blac kHat-USA-2010-Rad-DMCA-slides.pdf [http://perma.cc/4YR7-W9Y9]

(last visited June 6, 2016) (describing how copyright owners have abused the laws to censor

content, creating a chilling effect; for example, 37% of DMCA takedown notices Google

receives are invalid).

177

17 U.S.C. § 512(g) (2012).

178

Id. § 512(g)(2)(C).

179

See generally Rad & Mooney, supra note 176 (describing how copyright

owners have abused the laws to censor content, creating a chilling effect).

180

See supra note 129 and accompanying text.

2016] YOU(TUBE), ME, AND CONTENT ID 1305

holders. A compulsory licensing system would ameliorate this

chilling effect by extinguishing the specter of infringement

altogether , resulting in eviscerat ion of the DMCA takedown

regime. Fair use or not, infringement or not, content would be

prelicensed and unencumbered.

C. Historical Analogy

Throughout the years, Congress has recognized the need

to amend the copyright law to respond to changes in content

consumption. No compulsory licensing provisions were in place

until what has become the current section 115, section 1(e), was

enacted in 1909.

181

Leading up to the passage of section 1(e), there

had been “significant growth of both player pianos and the earlier

forms of recorded music.”

182

But because reproducing a song on a

player piano roll

183

was not illegal under the then-current

protection.

184

Although willing to expand protection of the

reproduction right for publishers, Congress was concerned that

publishers would exercise “monopoly power over the recording of

music,”

185

just as recording technology was beginning to grow.

Striking a tough balance, Congress expanded protection over new

forms of reproduction and created the section 1(e) compulsory

license, allowing anyone to record a composition without

obtaining a license directly from the copyright holder (provided

that certain other conditions were met).

186

Thus, from a use

perspective, in the same way that Congress wanted to protect

against monopolies over recorded music, Congress should enact a

compulsory sync license to protect against the present-day

181

The compulsory licensing provision of the 1909 Copyright Act was known

as section 1(e). An Act to Amend and Consolidate the Acts Respecting Copyright, ch.

320, § 1(e), 35 Stat. 1075 (1909).

182

Howard B. Abrams, Copyrigh t’s First Compulsory License, 26 SANTA CLARA

COMP. & HIGH TECH. L.J. 215, 217 (2010) (footnote omitted).

183

A player piano is “a piano that can play automatically when the keys are

actuated electronically or by a pneumatic device controlled by a piano roll.” Player Piano,

DICTIONA RY.COM, http://dictionary.reference.com/browse/player-pian o [http://perma.cc/

2N35-TA32] (last visited June 6, 2016).

184

Abrams, supra note 182, at 218-19.

185

Id. at 219; Music Licensing Reform: Hearing Before the Subcomm. on

Intellectual Prop., Comm. on the Judiciary, 109th Cong. 108 (2005) (statemen t of Marybeth

Peters, The Register of Copyrights), http://copyright.g ov/docs/reg stat0712 05.html

[http://perma.cc/B2NB-QZPD] (“However, due to concerns about potential monopolistic

behavior, Congress also created a compulsory license to allow anyone to make and distribute

a mechanical reproduction of a nondramatic musical work without the consent of the

186

Abrams, supra note 182, at 220-21.

1306 BROOKLYN LAW REVIEW [Vol. 81:3

monopoly copyright owners have on music recorded with visuals.

From a technology perspective, Congress should expand the scope

of the compulsory license to recognize advances in technology that

have given people the capability to make and post music recorded

with visuals with the same ease that they have been able to make

recordings since the early twentieth century. It is quite simply the

natural and neces sary extension of our current framework that

reflects modern attitudes towards the use and availability of

copyrighted content.

187

The player piano of yesterday is the

YouTube of today.

Another compelling justification for expansion towards a

compulsory sync license is that copyright scholars have found

that the synchr on iz ation right may have roots in the prior

section 1(e). Copyright scholar Professor David Nimmer believes

that although the synchronization right is not explicitly found in

the section 1(e) compulsory license, the right itself may stem

from that section.

188

D. YouTube Could Easily Administer This System

YouTube is many things. It is both a video platform and a

streaming music service. It is also an enormous database that is

constantly maintained and filled with metadata and ownership

information about every piece of content it hosts. In the past, the

music industry has attempted to install a central repository of

rights-management information, but it has proved infeasible

because of logistical issues.

189

This is largely due to the various

collection agencies operating in their own respective vacuums of

rights and refusing to share their catalogs of information and

metadata with other agencies. For example, the American Society

of Composers, Authors and Publishers (ASCAP) and Broadcast

Music Inc. are both collective-licensing bodies that license and

collect performance royalties for musical compositions. Another

collective-l ic ensing body, the Harry Fox Agency, licenses

mechanical rights for the reproduction and distribution of musical

compositions. Yet another collection body, SoundExchange,

commissioned by Congress, only collects royalties for

187

To reiterate, Congress has not been bashful about expanding the scope of

compulsory licensing over the years by creating sections 114 and 111. See infra notes

150-57; Section III.E.

188

1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT

§ 2.09[E][3] (1985).

189

Kate Holton, Music Industry Working on Global Copyright Database,

REUTERS (Jan. 21, 2011, 12:09 PM), http://www.reuters.com/article/2011/01/21/us-

global-rights-idUSTRE70K56420110121 [http://perma.cc/3PCH-NVW6].

2016] YOU(TUBE), ME, AND CONTENT ID 1307

noninteractive streaming of sound recordings.

190

Each of these

entities maintains a separate database, and the information is not

cross-referenced with other collective rights bodies to ensure that

ownership information and metadata are correct.

191

These

databases are not as comprehensive or complete as YouTube’s

because the various royalties and the patchwork of rights

necessary to make licensing of content possible on YouTube (e.g.,

composition, sound recording, and audio-visual rights) requires

that data from many of these central bodies reside on YouTube’s

servers. YouTube has properly linked and cross-referenced all of

this data to ensure accurate remittance of royalties.

192

YouTube is

the database that the industry has been waiting for, as it has

ingested and catalogued more metadata and information about

each unique piece of content than any other music rights

database before it.

193

Now that th e data base and technology

exists, why not use it to facilitate better licensing practices?

E. The De Facto Compulsory License Regime

Content ID already functions lik e a compulsory license

system because all major content owners have opted into it.

194

It gives content owners a mechanism by which to monetize

user-generated content despit e no license being in place, as if it

were already a compulsory system. In fact, when content

owners contractually agree to manage their content through

Content ID, they technically grant YouTube the right to issue a

synchronization license on behalf of the content owner(s) to the

user account each time a video is claimed for monetization.

195

For all intents and purposes, this is a private compulsory

190

General FAQ, SOUNDEXCHANGE, http://www.soundexchange.com/generalfaq/

[http://perma.cc/2QPC-WF6P] (last visited June 6, 2016). The Copyright Office would

be another potential example of a government entity that maintains a large database of

ownership data. But because the law does not require that one register with the

inevitably incomplete, as many do not register. Copyright in General, COPYRIGHT.GOV,

http://copyright.gov/help/faq/faq-general.html#regist er [http://perma.cc/JL58-L4VB] (last

visited June 6, 2016).

191

Interview with Brandon Martinez, supra note 23.

192

Id.

193

Id.

194

Most content owners have opted into YouTube, like it or not. Hugh

McIntyre, YouTube Is About to Delet e Independent Artists from Its Site, FORBES (June

18, 2014, 9:15 AM), http:// www.forbes.com/sites/hughmcintyre/2014/06/18/youtube-is-

about-to-delete-independent-artists-from-its-site/ [http://perma.cc/6ZVP-AJRN] (“Vice

President and Global Head of Business at YouTube Robert Kyncl recently claimed that

they already had deals with 90% of the industry . . . .”).

195

Interview with Brandon Martinez, supra note 23.

1308 BROOKLYN LAW REVIEW [Vol. 81:3

licensing scheme that has developed in the shadow of the

A striking similarity between Content ID and a traditional

compulsory license regime is that the user never negotiates a

license for the use. Whether the terms are set by statute or by

YouTube, users’ only concern is keeping their content hosted.

There are, however, differences between our current system

196

and a compulsory system that could complicate the transition.

First, in a traditional licensing scheme, rates are set by either

federal copyright royalty judges

197

or arms- length bargaining,

whereas in the current system, advertiser demand sets the rate.

198

Having advertisers set the rate is not necessarily a bad thing.

Some critics of the current compulsory regime believe that a

statutory minimum devalues content by setting a false price

ceiling that does not account for the inherent variance in value

between differing pieces of intellectual property.

199

Second, the

formalities of the section 115 statutory framework do not exist on

YouTube.

200

This difference is beneficial to users because it makes

the entire licensing proces s seamless. Casual, everyday users of

YouTube cannot be expected to follow administrative formalities

in clearing a license. Like it or not, this is the world we live in

today, where nearly everyone has Internet access and is able to

create, reproduce, and disseminate content instantaneous ly.

From a purely legal perspective, today’s compulsory

licensing structure is not far from a compulsory synchronization

regime. The patchwork of rights that are granted between

196

For an explanation of our current compulsory licensing system, see supra Part II.

197

Ali Sternburg, The Copyright Royalty Board: An Explainer, DISRUPTIVE

COMPETITION PROJECT (Dec. 16, 2015), http://www.project-disco.org/intellectual-

property/121615-the-copyright-royalty-board-an-ex plainer/#.VqIqk7ArIUE [http://perma.cc/

X94Q-3F7T]. The Copyright Royalty Board is a panel of “three Copyright Royalty Judges

who set statutory license rates for certain music services.” Id. They only set rates for

noninteractive streaming services (i.e., services that function like radio, such as Pandora),

not YouTube (which is an interactive streaming service). Id. For further discussion of

interactive versus noninteractive services, see supra notes 157-58 and accompanying text.

198

How Ads Are Chosen, supra note 22.

199

Bevilacqua, supra note 157, at 299; see Music Licensing Reform: Hearing Before

the Subcomm. on Intellectual Prop., Comm. on the Judiciary, 109th Cong. 118 (2005)

(“Because section 115 and its predecessor have rarely been used as functioning compulsory

licenses and have served simply as a ceiling on the royalty rate in privately negotiated

licenses, it has placed artificial limits on the free marketplace.”); SAG, supra note 161 (“By

definition, a compulsory license bypasses the information aggregation function of the

market. Whether by legislative [fiat], administrative rule-making [or] quasi-judicial

arbitration, the bodies responsible for determining prices under a compulsory license are

typically starved of information and lack the expertize and ability to acquire it.”).

200

When a user uploads a video and a copyright holder claims it for monetization,

the user must merely check a box indicating that they consent to having their video claimed.

No further action is required by the user, and the user is allowed to keep the video. Pacheco,

supra note 34.

2016] YOU(TUBE), ME, AND CONTENT ID 1309

sections 114 and 115 is merely a step away from being a special

sync license. Between the section 115 license, which provides for

reproduction and distribution of compositions, and the section 114

license, which provides for performance royalties for noninteractive

streaming of sound recordings, Congress has shown its willingness

to expand the compulsory right and adjust licensing practices to

changes in consumer consumption. The proliferation of video-

content providers should prompt Congress to expand the right in

the same way it did when Internet radio providers came into being.

F. Reducing Transaction Costs, Improving Use r

Experience, and Expanding Access to Content

Content ID and compulsory licenses are extremely

efficient because of the minimal transaction costs, given that the

user negotiates nothing. For most people, the transaction cost of

licensing music for a video is too high. For example, the content

creator might not know how to get in touch with the copyright

owner or how to ask the copyright holder for the rights. In

addition, the content creator might not be able to afford to send a

lawyer to negotiate the contract. Both Content ID and compulsory

licenses help users by dramatically lowering transaction costs so

the user can create derivative content and so the copyright owner

can get some payment without having to play legal whack-a-mole.

Lowering the transaction costs of using copyrighted content is

great for the “little guy” who does not have the wherewithal to

license or pay, and it would also highly benefit artists and

songwriters through large cost savings on administration fees.

201

A special compulsory license for UGC platforms would also

result in a much-improved user experience. No longer would

users receive frivolous copyright claims on their videos and have

to undergo the cumbersome user appeals process that weighs so

heavily in favor of content owners. Curing the cumbersome user

appeals process would benefit rights holders by reducing their

load on reasserting rights to disputed claims. A compulsory

license system would also make users “partners” in a sense.

Instead of telling users that their video has been “claimed by

Sony” on copyright grounds, a compulsory licensing system would

201

See Holton, supra note 189 (“The industry estimates that 100 million euros

each year could be saved in copyright administration fees and returned to song writers and

the industry by simplifying the current system.”); see also Andrew D. Stephenson,

Webcaster II: A Case Study of Business to Business Rate Setting by Formal Rulemaking, 7

HASTINGS BUS. L.J. 393, 399 (2011) (explaining that imposition of a compulsory scheme

lowers transaction costs for both copyright owners and copyright users).

1310 BROOKLYN LAW REVIEW [Vol. 81:3

perhaps tell them they have been issued a limited license to use

the work on YouTube only, making all users “partners.” It would

result in a less adversarial system where users would not have

such an “us-versus-them” mentality when dealing with posted

content.

202

Further, a compulsory sync license would have a

democratizing effect on access to content. The current framework

serves to chill content via the provisions of the DMCA

203

and

abusive claim practices that disenfranchise users.

204

The

compulsory sync license would eliminate this ineq uity by

expanding access to content.

The compulsory sync license would eliminate other

chilling effects as well. One problem with the current system is

that any individual stakeholder to a piece of copyrighted content

may veto its use on YouTube, despite the intentions of the other

stakeholders.

205

For example, take a song that has seven writers

(which is certainly not uncommon today),

206

of which one of the

writers owns 1%. Even if the other six songwriters have set up

Content ID so that matches are monetized, if the 1% writer has

instituted a block or takedown policy, he will block the other

rights holders from receiving any revenue from the work, despite

their preference to monet ize. This is because YouTube must

always abide by the most conservative policy set on a video,

207

else an infringement of the 1% owner’s rights would occur. Any

cowriter, no matter how small the stake, is given a nuclear veto

power that forecloses other rights holders from enjoying revenue

from a specific piece of content. Even worse are instances where

an entity that does not even own the rights to the content it is

202

See generally YouTube’s Joke of a Fair-Use Appeal Process, supra note 51.

The tenor of this article demonstrates that users feel betrayed, that they do not have a

fair shot at having their voices heard, and that the process is a “joke.”

203

See supra Section III.C.

204

See supra Section I.E.

205

Interview with Brandon Martinez, supra note 23.

206

Bob Lefsetz, The Story Is Not the Music, LEFSETZ LETTER (Dec. 19, 2013),

http://lefsetz.com/wordpress/index.php/archives/2013/12/19/the-story-is-not-the-music/

[http://perma.cc/CF64-MBC4] (“Come on. Art is about inspiration . How much inspiration is

there in records made by committee? It’s all formula, all the time.”).

207

Pro Tips & Advanced Resources: Rights Management, YOUTUBE, https://

support.google.com/youtube/answer/6106902?hl=en&ref_topic=6084219 [http://perma.cc/

55BZ-84CW] (last visited June 6, 2016) (“YouTube associates a policy with a video whenever

someone claims the video. When a video has multiple valid claims and therefore

multiple valid policies associated with it, YouTube applies whichever policy results in

the most restrictive action. If one policy says to monetize the video and another says to

block it, YouTube blocks the video.”); see also Ari Hestand, Jeff Pric e and Audiam Look

to Fix YouTube’s Royalty System, D

IGITAL MUSIC NEWS (Jan. 21, 2014), http://

www.digitalmusicnews.com/per malink/2014/01/21/jeff-price-audiam [http://perma.cc/287M-

FNRM] (explaining that “YouTube will not monetize a video unless they have clearance” for

the copyright in the composition, master, and video).

2016] YOU(TUBE), ME, AND CONTENT ID 1311

claiming seeks to block or take down content that the rightful

208

Again, one disgruntled

rights holder or abusive content claimant has the power to stall

the money train for everyone else. And aside from the monetary

concern, it also has a chilling effect on ideas, innovation, and

proliferation of content due to overcensorship.

209

A compulsory sync license would ameliorate these issues

by automatically granting a license to use the work, regardless of

whether one co-owner or all the co-owners wanted to veto the use.

A disgruntled cowriter or abusive content claimant would have no

choice but to automatically grant a license. From a policy

perspective, rights holders should be able to enjoy revenue on

digital platforms despite the preferences of a cowriter. Not

allowing one stakeholder to prevent other stakeholders from

spreading their ideas and content, all while generating revenue

for the whole pie, aligns with the utilitarian goals of copyright law

to “promote the Progress of Science and useful Arts.”

210

G. Burden Shifting in Copyright Cases: A Change in Ideology

A recent notable case, Field v. Google,

211

highlights courts’

changing expectations of how licenses are issued. In 2004, Field

filed a copyright infringement suit against Google alleging

violation of his reproduction and distribution rights.

212

For Google

to be able to provide its search engine service, it crawls the

Internet creating cached versions, or “snapshots,” of websites to

better enable indexing of results.

213

Google provides cached

versions of webpages in its search results as well.

214

Field alleged

that Google’s copying and distribution of his website in the form of

cached pages constituted infringement.

215

The court granted

Google’s motion for summary judgment

216

and ruled that Google

had an “implied license” to make the reproductions and

distribution s of Field’s webpage because Field did not attach the

208

See Patrick McKay, YouTube Copyfraud & Abuse of the Content ID System,

FAIR USE TUBE.ORG (Nov. 23, 2011, 3:22 PM), http://fairusetube.org/youtube-copyfraud

[http://perma.cc/22KE -LVFT].

209

Currently, millions of dollars in accumulated revenue is tied up in escrow

because of this issue. Interview with Brandon Martinez, supra note 23.

210

U.S. CONST., art I, § 8, cl. 8.

211

Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).

212

Id. at 1109-10.

213

Id. at 1110.

214

Id. at 1111 (“Google has provided ‘Cached’ links with its search results

since 1998.”).

215

Id. at 1114.

216

Id.

1312 BROOKLYN LAW REVIEW [Vol. 81:3

appropriate metatags to his website to prevent it from being

cached.

217

In other words, because Field did not take the

appropriate steps to prevent third parties from caching his site,

his inaction granted Google an implied license.

Field is noteworthy in that it shifts the burden to

of tradit ionally “opting in” to a specific use. The onus is on rights

holders to prevent or veto uses of content, not on users to ask for

permission, reflecting modern views as to how copyrighted

material on Internet platforms should be managed. The

compulsory system evinces similar attitudes and seeks to achieve

the same end—it presumes that a work is available for use

without prior approval or permission. Field shows that as a

society, we are ideologically and doctrinally closer to embracing

and achieving a compulsory license system. Field signals a

paradigm shift for licensure of copyrighted web content from

express to implied licensing , bringing us closer to a compulsory

licensing regime by moving the needle along the continuum

towards less restrictive licensing practices.

218

IV. D

IFFICULTIES WITH IMPLEMENTATION

A. Establishing Uniformity Across Platforms

Establishin g uniformity across platforms is one of the

biggest hurdles to implementing a compulsory synchronization

license. Requiring UGC services to participate in issuing these

licenses on-platfor m seems technologica lly and logistically

impossible because it requires UGC services to be technically

sophisticated enough to handle a Content ID–type system. This

may have a crippling effect on innovation by creating a higher

barrier to entry for any platform that hosts user-generated

content. One solution may be that the compuls ory system merely

sets certain minimum standards, even if the system is not as

sophisticated as Content ID.

219

Perhaps one could envision a

217

Id. at 1115-16.

218

An example of a more restrictive licensing practice would be one that requires

arms-length negotiation and express authorization, whereas examples of less restrictive

licensing practices include implied licenses, creative commons licenses, and compulsory

licenses (i.e., those that do not require permission or negotiation with the rights holder).

219

Think of a system somewhat akin to the European Union Data Privacy

Directive, which set minimum standards for data privacy compliance for all E.U. member

nations. See Press Release, Directorate of Communications, Council of Europe, Council of

Europe Adopts Recommendation of Profiling and Data Protection (Nov. 25, 2010),

https://wcd.coe.in t/ViewDoc.j sp?Ref=PR892( 2010)&Language=lanEnglish&Ver=original&Si

2016] YOU(TUBE), ME, AND CONTENT ID 1313

system where a third-party licensing body, akin to ASCAP, would

issue and administer these licenses by connecting to and

communicating with UGC platforms to enable that support. A

positive point to note is that Content ID–like systems are

becoming increasingly common across UGC platforms,

220

perhaps

signifying that implementing this technology is quite feasible.

Another potential roadblock to implementation is that a

compulsory license system may impliedly or directly create a

duty for UGC platforms to scan for infringement through the

use of audio-recognition technology. Currently, there is no duty

for UGC platforms to search for copyright infringement.

221

the other hand, Google CEO Eric Schmidt has regarded

Content ID as “key” for avoiding infringement liability.

222

But

UGC platforms should find solac e in the fact that a compulsory

system would effectively eliminate the spec ter of liability for

licensed by default.

B. The Money Train Isn’t Long Enough

The looming question in this new compulsory sync

licensing system is: “Who pays?” In the current compulsory

license system, the licensee pays the licensor.

223

On Content ID,

YouTube arranges for the licensor to be paid with ad revenue.

224

new compulsory sync license may require the licensee, the

intermediary, or both to pay—or perhaps there could be a choice

as to who pays based on the platform.

If advertisers continue to foot the majority of the bill when

it comes to paying copyright holders, this may levy an

unsustainable strain on the revenue pool. Advertisers only have

so much money they can use to fill inventory,

225

and perhaps it is

not possible to monetize all content. It is concerning to think that

the system would fail if advertisers stopped bringing huge bags of

money to the table. Do we want a licensing scheme that is

te=COE&BackColorInternet =F5CA75& BackColorIntranet=F5CA 75&BackColorLogged=A9

BACE [http://perma.cc/YZN3-7PVV].

220

Interview with Brandon Martinez, supra note 23.

221

See, e.g., Masnick, supra note 29.

222

Delaney, supra note 73.

223

17 U.S.C. § 115 (2012).

224

Interview with Brandon Martinez, supra note 23; YouTube Partner

Earnings Overview, YOUTUBE, https://support.google.com/youtube/answer/72902?hl=en

[http://perma.cc/K3XY-5TDL] (last visited June 6, 2016).

225

Remember that monetized and claimed videos become inventory for advertisers

to fill. See supra Section I.A. Thus, references to inventory here merely mean claimed and

monetized videos that are waiting to be filled with ads.

1314 BROOKLYN LAW REVIEW [Vol. 81:3

dependent solely upon the viabil ity of the advertising industry?

And even if this were possible, do we want a scheme where

royalty rates are set by ad networks?

As long as content is free, perhaps the answer to these

questions is “yes.” That answer, however, comes with some

qualifications. A system that utilizes ad networks to set royalty

rates would possess inherent inequities because it would depend

upon the advertisers’ interests. Advertisers want to fill inventory

that, among other factors, corresponds with the demographic they

are trying to reach. This means two separate pieces of content

that are similar in terms of quality, views, and engagement could

be treated differently. One piece of content could be filled with

lower-rate ads while another, similar piece of content could be

filled with higher-rate ads, resulting in more royalties to the

latter content owner. Thus, it seems unfair to pay a copyright

holder a royalty equal to its relative value to advertisers, rather

than the value it contributes to YouTube and society overall.

Another revenue consideration is that if the royalty rate

depends on the ad networks, which fluctuate constantly, this

could result in devaluation of copyrighted content. Currently,

there are statutorily prescribed, minimum royalty rates in place

for content licensed via section 115.

226

A compulsory sync license

dependent solely on ad revenue may result in market forces

pushing the price of content down (via simple supply and demand

economics) because the amount of digital content available is

virtually endless. One possible solution would be to set a statutory

minimum for content, and advertisers would have the option of

paying more than the minimum for premium content.

Implementing a statutory minimum is a risky situation, however.

If the minimum is too high, it could drive disgruntled advertisers

off-platform. If the minimum is too low, copyright ed content may

be devalued anyway because setting a low floor reflects that

content is worth less.

Perhaps a compulsory sync license system that gives users

the option and ability to foot some of the bill for licensing the

content would be beneficial as well. Knowing that they have a

direct impact on the artist’s bottom line might bring users closer

to artists and copyright holders. Any user payment would also be

factored into increasing the value that ad networks attribute to

specific pieces of content, thus resulting in higher-grossing ad

placements. All in all, though taking money from advertisers may

be problematic, as long as consumers are not willing to pay for

226

What Are Mechanical Royalty Rates?, supra note 142.

2016] YOU(TUBE), ME, AND CONTENT ID 1315

content, advertiser dollars are here to stay and would be the

prevailing source of revenue in a compulsory synchronization

licensing scheme.

C. Who Administers? Private Industry or the Government?

A concern of rights holders und er a compulsory sync

system is: Who administers and distributes the royalties?

Different conflicts of interest would exist depending on whether a

private body (i.e., UGC platforms) or the government administers

this system and distributes royalties. The question truly boils

down to whether licensing should be done on-platform (by a UGC

platform like YouTube) or via a neutral third party (like the

government). There are arguments for and against both. Private

corporations may argue that they should not be saddled with

taking on a statutory licensing scheme enacted by the people

because that is the government’s duty. Another concern is that

on-platform licensing involv es an inherent conflict of interest. On

one hand, platforms desire to maximize revenue for their

administration services. On the other hand, platforms should

ensure that the value enjoyed by rights holders is maximized by

cheapening administration services. Although transaction costs

would decrease if licenses were issued on-platform, the inherent

conflict of interest and burden placed on UGC platforms could

weigh against having a private corporation administer a special

compulsory synchroniza tion license.

Perhaps governmental regulation and oversight of private

corporations would ensure that rights holders are paid fairly and

that the system is managed properly. Again, corporations will

most likely fight against the government imposing any sort of

duty. Moreover, licensing could be conducted by a neutral,

statutorily created body that connects and communicates with

various UGC platforms’ technology to record data on all claims

and views, similar to the services SoundExchange provides for

noninteractive streaming platforms.

227

D. What About the DMCA Takedown?

A compulsory sync license regime would necessarily

displace provisions of the DMCA as they apply to infring ement of

227

SoundExchange collects noninteractive streaming royalties for the use of

sound recordings. Abo ut , SOUNDEXCHANGE, http://www.soundexchange.com/about/

[http://perma.cc/KK5B-7W7G] (last visited June 6, 2016).

1316 BROOKLYN LAW REVIEW [Vol. 81:3

the reproduction, distribution, and synchronization rights on

UGC platforms. It would mean that content owners could not

submit a takedown notice for these uses on UGC platforms. The

protections of the DMCA in this context, however, would not have

to be completely abolished. Perhaps an amendment to the DMCA

would condense the scope of takedowns on UGC platforms so that

takedowns are only available where there is objectively offensive

material paired with a copyright owner’s specific composition or

recording. Although it would be difficult to draw the line as to

what constit utes “objectively offensive,” a start would be banning

porn/obscenity and building up from there.

228

Moreover, it would

be prudent not to strip all the protections that the DMCA

currently affords to rights holders, bec ause in a compulsory

system, rights holders already have little control over their

content.

229

Thus, in the interest of fairness, content owners should

not lose complete control over certain rights that they once fully

possessed. In sum, the DMCA would potentially serve as a

statutory outer boundary that curtails the expansion of a

compulsory rights system.

E. Scope of the License

The scope of a compulsory sync license would be difficult to

define. It must be drawn narrowly and with great caution so as

not to disrupt licensing practices in other sectors of the music

industry. For starters, the present day system prescribes natural,

logical bounds, as one of the main reasons for implementation is

that there is already a de facto system in place. Next, the policy

motivations behind the compulsory regime are instrumental to

defining the scope of the license. In theory, this license is meant to

benefit the “little guy,” such as people like your cousin merely

trying to post her wedding video. It is also meant to alleviate the

challenges faced by content owners that necessarily arise in

licensing vast amounts of content. Bearing these goals in mind, a

compulsory sync license must be drafted to achieve, but not

exceed, these ends.

To be clear, the license would only cover the use of sound

recordings and musical compositions for synchronization with an

original visual representation for use on UGC platforms. And the

228

Although admittedly, most UGC platforms would, in their terms of

service/terms of use agreements, expressly prohibit porn or obscenity.

229

Bevilacqua, supra note 157, at 299 (“Compulsory licenses create a

mandatory non-negotiable contract where the property owner is forced to give virtually

unlimited use of his work . . . .”).

2016] YOU(TUBE), ME, AND CONTENT ID 1317

law’s definitions are imperative to determining the scope of the

license. What is classified as a UGC platform would be any

platform akin to YouTube, Facebook, Snapchat, Vine, Instagram,

Vimeo, or Daily Motion, which all allow individual, amateur users

to sign up for account s to upload video content. Use on any other

platform, such as Cable TV, Netflix, HBO, or any other video site

that does not have user-generated content would not qualify for

the license.

230

Curated video sites like Vevo would also not qualify

because Vevo does not maintain user-generated content—it is a

music video distributor.

231

The traditional method of obtaining a

synchronization license, via arms-length negotiation, would still

be available in all other instances.

Further, it is equally important to limit the types of users

permitted to invoke the license. The scope must initially be

limited to amateurs. Corporations with large artist rosters (who

have already negotiated ancillary royalty agreements with

YouTube)

232

should not be able to take advantage of what may

perhaps be a more economically favorable arrangement under the

compulsory license. Small and medium-sized record labels and

music publishers should not be able to take advantage of the

compulsory license unless the entity is so small that it would be

cost prohibitive to obtain a traditional license.

233

And large

multichannel networks such as Fullscreen or Maker Studios

234

that gross millions of dollars a year from syndication of content

235

are obviously not within the scope of the license.

230

If the platform has user tiers and syndicated tiers, the license would apply

only to user-uploaded content.

231

Catherine Shu, YouTube Confirms Renewed VEVO Deal, Takes Stake in

Company, TECHCRUNCH (July 2, 2013), http://techcrunch.com/2013/07/02/youtube-

renewed-vevo-deal/ [http://perma.cc/WR92-JR6G].

232

Most major content owners have opted in to YouTube, like it or not. McIntyre,

supra note 194 (“Vice President and Global Head of Business at YouTube Robert Kyncl

recently claimed that they already had deals with 90% of the industry . . . .”).

233

The entity would have a duty to show that it could not afford a traditional

synchronization license for online syndication.

234

See FULLSCREEN, http://www.fullscreen.com/ [http://perma.cc/6MCK-CLCZ]

(last visited June 6, 2016); MAKER STUDIOS, http://www.makerstudios.com/ [http://perma.cc/

9A5T-NNZ9] (last visited June 6, 2016); see also Carla Marshall, Beyond YouTube: Why

MCNs are Looking to Other Video Platforms for New Opportunities, REELSEO (Aug. 13,

2015), http://www.reelseo.com /beyond-youtube-m ultichannel -networks/ [http://perma.cc/

4YSG-4B2R] (showing that Maker Studios and Fullscreen were the top two multichannel

networks on YouTube in June 2015, ranked by total views).

235

Wagner James Au, YouTube’s Machinima Channel Earning Up to $8.6M a

Year!, NEW WORLD NOTES (Oct. 4, 2011), http://nwn.blogs.com/nwn/2011/10/youtube-

machinima-channel-revenue.html [http://per ma.cc/7HBU-B5Y9].

1318 BROOKLYN LAW REVIEW [Vol. 81:3

CONCLUSION

The establishment of a special compulsory synchronization

license for UGC platforms that host musical compositions and

sound recordings is crucial to creating a uniform standard for

content management across the web. Currently, there is no

consistency in enforcing and monetizing copyright on the

Internet. YouTube is the leading innovator in evolving licensing

schemes, and it makes sense to follow its system and attempt to

implement a similar system on other UGC platforms. Statutory

implementation of a special compulsory synchronization license

will encourage other UGC platforms to provide an infrastructure

that does not thrive on widespread ratification of infringement. In

the process, this system will alleviate the chilling of content,

inadequate compensation, bias in adjudicating user disputes, and

licensing’s high transact ion costs. All in all, artists, songwriters,

and users alike should be fairly compensated for their creations,

and this system brings us one step closer to realizing that goal.

Nicholas Thomas DeLisa

†

J.D. Candidate, Brooklyn Law School, 2016; B.M., University of Miami,

2012. Thank you to Lillian Smith, Michael Piacentini, and the entire Brooklyn Law

Review for their hard work on this note. I would like to specially thank Professor

Christina Mulligan for inspiring me to write on this topic and for providing amazing

guidance, insight, and input throughout. I would also like to thank Brandon Martinez

for allowing me the pleasure of interviewing him. Last but not least, I would like to

thank my mother, Jeannette DeLisa, who means everything in the world to me. None

of this would be possible without her love and su pport.