Unsafe Harbor

How YouTube exploits creators

Volume 119, No. 5May, 2019

Maria Schneider

The Artist Rights Caucus of Local 802 wants musicians to be aware of their rights – and their power – in the digital domain. Below, Maria Schneider gives a much-needed explainer on how Google (which owns YouTube) exploits the “safe harbor” provision of the Digital Millennium Copyright Act. To get involved, send an e-mail to

Over the past year, the public has turned up the heat on YouTube over how it manages the billions of videos on its site. We’re fed up with YouTube pretending it can’t manage all of that content while at the same time allowing it to be monetized to the tune of untold billions. YouTube seems perfectly willing to allow its big stars to monetize videos of Japanese “suicide forests” and countless immoral, criminal or unethical videos –until there is a public outcry.

The public is finally starting to demand that YouTube take some proactive steps to control all of the horrific crap that it hosts and profits from. In the recent case of the Christchurch mosque shooting in New Zealand, it seems hard to imagine that YouTube had no way to stop the publication of literally millions of videos showing the carnage from that tragedy.

YouTube’s excuse for not being held accountable for all of the illegal videos on its site is the “safe harbor” clause that was included in the Digital Millennium Copyright Act. The DMCA was passed back in 1998, and drafted before Google even existed – years before YouTube’s birth. Section 512 of the DMCA lays out the “safe harbor.” The basic thinking behind the safe harbor is: “Hey, the companies that are just providing the ‘pipes’ or backbone of the internet should not be held liable for the bad stuff that travels through the pipes.”

And that’s fair enough, but YouTube does far more than provide the internet “pipes.” It has become the world’s largest music publishing and distribution company. It’s the most powerful media publishing company the world has ever known, and it manipulates each and every one of us with all of the insidious user data it siphons from us all. But despite its total market domination, YouTube still enjoys the protections of this 1998 “safe harbor” from the era of dial-up modems. It is fair to say that the safe harbor clause has been worth untold billions of dollars to Google and YouTube.

YouTube and Google do practically anything in their power to protect this “safe harbor,” even though they outgrew that harbor well over a decade ago. In fact, last year, Congress finally managed to pass FOSTA, the federal act targeting sex trafficking, requiring that sites like Google and YouTube police its content for certain signs of sex trafficking. Believe it or not, Google actually spent millions trying to fight FOSTA. Why would they do that? The answer is easy: Google is afraid that if its safe harbor was pared back under FOSTA, it would establish a precedent that would erode its precious safe harbor status. That Google would blatantly support sex trafficking highlights just how valuable this safe harbor is to them.

Most recently, Google has fought against the EU’s new anti-piracy measures called Article 13. Google has even encouraged or participated in whipping up fake resistance to Article 13, trying to make it appear to lawmakers that the public is against the measure. Google used its worldwide mouthpiece to spread fear that Article 13 would be the “end of the internet.” But when Google got caught disseminating this false information, the EU lawmakers saw through Google’s greedy scheme and passed the resolution anyway. That’s ultimately very good news for musicians, authors and other artists who need to rely on the internet to share their art with the public.

The bad news is that it will take years before Article 13 (or Article 17 as it is now renamed) is really implemented. In the meantime, Google will continue to host and profit from untold quantities of illegal uploads. But there is one basis upon which Google should be made to immediately stop allowing this piracy. And that basis is a little phrase in the DMCA safe harbor provisions called “standard technical measure,” or “STM.” The DMCA says that if an STM comes into existence that would prevent piracy, Google can’t withhold it from artists who are trying to protect their works.

There is, in fact, an STM, and Google is, in fact, withholding it from many artists, myself included. That STM is digital fingerprinting technology, namely the kind developed by Audible Magic called Content ID. Many sites have used Audible Magic for years, Facebook included. Fingerprinting technology recognizes protected works and blocks an unlawful upload, or alerts the copyright owner and gives them the choice of what to do. Google uses its own version of it, but then picks and chooses exactly who gets access to it and for what use. Predictably, YouTube’s main use of Content ID is, of course, for monetization. And if you’re an individual creator like me and like the vast majority of  musicians out there, Google won’t allow you access unless you use their technology to make YouTube money. Google’s chief legal eagle has told Congress that musicians like me can’t use it because it’s too complicated. The truth is, there’s nothing complicated about it if you wish to block illegal uploads. The untold truth is that the majority of artists may individually be small, but collectively we are huge, and Google wants to remain the hub of all the world’s music, legal or not. Google treats access to its Content ID technology as a country club. But that’s against the law. And the law makes it clear that if a company like Google withholds an STM, it has to be kicked out of the safe harbor. So, Google does mind-numbing gymnastics to pretend that its Content ID is not really an STM.

Copyright has been the engine that has traditionally converted the energy of artistic creativity into publicly available arts and entertainment. We must all speak up collectively and demand equal access to YouTube’s Content ID for the use of protecting our works from illegal uploads. We should all have equal access to it. This we know for sure: YouTube will continue to skulk around in its safe harbor until it is  flushed out.

How can we flush it out? In the next article, I explore one way.

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.