Earlier this year, Local 802 member Maria Schneider submitted comments to the U.S. Copyright Office in response to its study on an important issue to musicians: the right of attribution and what are known as “moral rights.” This article is an abridged version of those comments.
If digital music is ever going to provide us a reasonable economic future, it will be because of metadata. Thus, I urge every musician and performer to demand that their metadata be kept intact and not be destroyed.
YouTube is intentionally stripping off creators’ metadata, which includes our moral rights of attribution and integrity. Essentially, YouTube is herding music and musicians into its platform, stripping away our identities, and then rebranding our works with the hot iron of its own system.
All MP3 files have standard copyright information attached as embedded metadata. When I create an MP3 file with my music on it, it is a digital file that contains specific information. By ISO standard , those files always include information about who owns the copyright, the date of the copyright, etc. That sort of information is specifically covered by Section 1202 of the Digital Millennium Copyright Act.
Section 1202 defines a term, “Copyright Management Information,” which includes the title, the author, copyright owner, performers, any terms and conditions covering the work, etc. Every MP3 file has this sort of copyright management information embedded in the file. For instance, most MP3 files have specific “metadata containers” called ID3v1 or ID3v2 tags (they contain 80 different fields). These standardized containers are well known to contain the copyright management information, and are an integral part of any digital music file. YouTube knows this well.
However, when a YouTube user uploads an MP3 file onto YouTube, that copyright metadata gets stripped away. To upload an MP3 to YouTube, I must convert it into one of the nine video formats that YouTube currently accepts (MOV, MP4, etc.), which strips the copyright metadata. And even if I manually add back my metadata to the video file, when the video is then downloaded, the added metadata isn’t there anymore – it’s stripped away by YouTube.
Section 1202 of the Digital Millennium Copyright Act prohibits a company like YouTube from removing or altering the copyright management information without the copyright holder’s permission. Congress was not messing around with this law. To strip such metadata knowingly, or to distribute such works knowing the metadata has been stripped, is potentially criminal under the law. But until there is an actual court case on this issue, YouTube will continue to strip away metadata from literally billions of files, like a power chipper on steroids. There is a good case on this exact point, but it deals with print media, not MP3 files. In Murphy v. Millennium Radio Group LLC, the U.S. Third Circuit Court of Appeals found that “it is undisputed that the DMCA was intended to expand…significantly…the rights of copyright owners.”
That bodes well for musicians. And it bodes poorly for YouTube.
The stakes are extremely high for YouTube, because if YouTube violates Section 1202 with its intentional policy of stripping copyright metadata, then it is not entitled to the Section 512 “safe harbor,” designation upon which YouTube has built its entire empire.
YouTube might initially try to point the finger of blame at its army of billions of users by saying, “Well, gosh, that stripping of metadata is done by our users when they convert MP3 files to video files, so don’t blame us, blame them.” But YouTube is smarter than that. They know that all of the software programs its users rely on, like iMovie, have very clear restrictions on what that software can be used for. The license terms state that movies created by a user are for individual, personal use only, and are not for commercial use. But YouTube is accepting billions of uploaded videos, knowing full well that its users did not have the necessary music license rights to commercially distribute those works on an international basis.
YouTube might then take the position that: “Oh, golly gee, maybe we do induce the systematic stripping of metadata. Oops! But we still have the right to hide in the 512 safe harbor, because Section 512(c) allows us to do what we need to do in order to store information at the direction of our users.” Though that’s what YouTube’s high-priced lawyers might claim, the simple truth is that regardless of what the user does or doesn’t do, YouTube, on its own initiative, still strips away that valuable copyright metadata. And to add insult to injury, YouTube’s robots re-encode the video with new metadata to now say “Produced by Google.” You can almost hear the sear of the hot iron, as they brand our works with their own technology, name and metadata.
For instance, part of the metadata contained in the ID3 tag that gets ripped off like a hide off of an animal, is the very valuable ISRC and ISWC codes. These are special codes affixed to the MP3 file that allow our recordings to be identified, so we can be paid. Without the ISRC code, services like Spotify would not know whom to pay. And an ISWC code is needed to distinguish a particular piece of music from other related music (e.g., arrangements or adaptations, etc.). In essence, the ISWC is itself a kind of unique fingerprint. So when YouTube encourages and induces these codes to be stripped off (or otherwise itself strips off these codes), it is eliminating the ability for anyone accessing the file to know or respect this important information. YouTube is directly interfering with our rights to display copyright management information through “standard technical measures.” The copyright law identifies a “standard technical measure” as “a technical measure used by copyright owners to identify or protect copyrighted works.” Obviously, the actual ISO standard for MP3 files is the epitome of such a technical standard. This is exactly what Congress intended by including this provision. So when YouTube denies us the right to avail ourselves of that copyright management information, and pushes a business model and technology platform that actually strips it off, then YouTube should no longer be allowed in the safe harbor.
One of the premiere copyright experts in the world, Professor Jane Ginsburg, recently wrote a lengthy and detailed article about these general issues. Her article concludes that platforms like YouTube may be liable if they intentionally remove or alter metadata if they know that “these acts will facilitate infringement by downstream users.”
In my submission to the U.S. Copyright Office, I urged the office to issue findings that companies who strip copyright management information from files are violating the moral rights of the authors, and are in violation of Section 1202 of the Digital Millennium Copyright Act. Companies who violate section 1202 or 512(i) of the DMCA are not entitled to the benefits of the safe harbor.
I urge my fellow musicians to insist that copyright metadata identifying them or their collaborators and performers be preserved on all digital platforms. Musicians who want to get more involved in digital rights can join the Local 802 Artist Rights Caucus. Send an e-mail to firstname.lastname@example.org.
Maria Schneider, a member of Local 802 since 1985, is a strong voice for music advocacy. In 2014, she testified before the U.S. Congressional Subcommittee on Intellectual Property about digital rights. She has also appeared on CNN, and has been quoted in numerous publications for her views on Spotify, Pandora, digital rights and music piracy. In 2016, she won two Grammys, one for her collaboration with David Bowie and another for her own orchestra.