Like all of us, I just want to create great music, play with the best musicians, and live my life. But all of us know that the economic landscape for our work has changed dramatically during the digital paradigm shift of the last two decades. And the changes have not been for the better when it comes to earning money for the content we create – content that virtually everyone acknowledges provides incredible value to our world at large as well as the digital platforms that have been profiting at our expense with near impunity and a blatant disregard for our rights.
What finally turned me into an activist for artists’ rights was the realization that no musician can afford to sit on the sidelines expecting others to fight for rights we ourselves are unwilling to defend.
I acknowledge that it is difficult to fathom the labyrinthine world of copyright law. I also know how much the wonders of the digital world are completely intertwined with our daily lives. So many of us create and share and consume our music online that it can be difficult to accurately assess the level of wanton irresponsibility with which the digital service providers have treated the entire music community.
Some find it daunting even to think about this. They have become resigned to accepting the unacceptable. But ask yourself if you’d really lay out a thousand bucks for a mobile device, or pay for a subscription for a music service, or even visit a Web site if there was no interesting content. Most of us value the digital tools and toys we have become so transfixed by primarily because of the content they give us access to. So isn’t it about time the creators of all that content get an equitable percentage of the revenues our content generates?
The affirmative answer I reached upon asking myself that very question led me to get involved in defending copyright from the plethora of unmitigated assaults on what is still the law of the land. Copyright exists for reasons that our founding fathers recognized and acknowledged. It has served creators of content quite well for much of our country’s history. It is in no small way responsible for why American music has been the acknowledged world standard in musical excellence for much of the history of recorded music. In the digital era, as more and more of us become our own producers and in effect function as entrepreneurs, the protection copyright affords us is even more important, not less important as the tech giants would have us believe.
Roughly two years ago I joined the Artist Rights Caucus of Local 802. It has been an eye opening experience. Some of what I have learned as an activist for artist rights was so alarming that it led me to participate in the U.S. Copyright Office Roundtable on reform of section 512 of the Digital Millennium Copyright Act on April 8, 2019 at the Library of Congress in Washington, D.C.
I learned quickly that we are not alone: photographers, filmmakers, authors and journalists are all fed up with “disruptors” whose “leech-onomic” business practices could use some disruption themselves. It was also painfully obvious that Big Tech has deep pockets. It should come as no surprise that their agenda of undermining copyright has very vocal support coming from many groups that are actually funded by tech giants. Tech hires the best law firms. They hire the best lobbyists. They have the biggest bully pulpit the world has ever seen, and they use it to obfuscate the damage they are doing to the creative classes. And it appears they may even fund their fight against our rights with revenues generated from infringing our rights!
If you write songs, if you compose music of any kind, if you arrange music, if you perform as a backup or studio musician, if you are the front person or band leader, if you work in virtually any context in which music exists, then you and your livelihood have been adversely affected by the perpetual devaluing of music facilitated by policies and practices embraced and advocated by Big Tech.
Devaluing music anywhere devalues it everywhere. This is a simple economic fact. Here’s an example from another industry. The famous diamond company DeBeers regulates the flow of diamonds entering the market each year to maintain the perceived value of their product. A flood of diamonds will devalue the perceived value of diamonds, so they control the market for their product. DeBeers has a near monopoly on diamonds. In the digital music industry, we could argue that a few major tech firms share a near monopoly on online music distribution. I’m thinking of YouTube (owned by Google) and Spotify, among others. We are told we should just accept their near monopoly as an unassailable fact and stop whining. Musicians are faced with the perfect storm of music being ubiquitous on the one hand, while at the same time being available for free worldwide.
And just to give you a sense of the real economic landscape: the average payout from streaming services (which some propose as the remedy for the inequities we face) is less than six ten thousandths of a cent per use. This is before the recent 44 percent increase the rate court judges awarded us, an increase which is being challenged and appealed by most of the tech players involved in streaming – except Apple.
Put another way: to generate the monthly minimum wage of $1,472, one needs over 2.1 million monthly plays. But even this paltry rate only applies if you own all the rights. You would have to be the composer, the publisher, the featured artist and you would have to own the sound recording (i.e. the song is released on your own record label).
This sorry reality is frequently defended as the result of digital tech lowering the cost of entry. (For instance, anyone can upload a YouTube video of their music for free.) Some might argue that the digital paradigm shift has reduced the costs of distribution, at least for digital distribution. But it has done little to reduce the production costs associated with recording music, especially music involving human beings playing acoustic instruments together at the same time in the same place.
WHAT CAN BE DONE
Despite my tale of doom and gloom, things are not hopeless. More and more content creators are coming together to defend our rights!
Local 802 now has a variety of grassroots groups its members can participate in that are actively pursuing remedies to injustices we are all expected to blindly accept in return for a panoply of utopian fantasies that, like much of the rest of our economy, only enrich the few at the expense of the many.
The two grassroots activist groups affiliated with Local 802 that I’m actively involved in are the Artist Rights Caucus and the Indie Musicians Caucus. I strongly encourage my fellow musicians to get involved. Attend some of their meetings. If you dig what you hear, join them and help fight the good fight. We can win this fight to protect and enforce our rights only by imagining our victory and then engaging in organized applications of the power we have as the creators of the content that makes the system run. Without our content, there is no online content to be monetized, and the value of the digital service providers’ platforms decreases. They cannot attract eyes and ears without our content. But we must first protect our rights before we can enforce our rights. And that begins with standing up for our rights! As Malcolm X said: “If you don’t stand for something, you’ll fall for anything.” Stand up for your rights, and stop accepting the false equivalency that free access equates with free speech. It is a specious argument disseminated by Big Tech solely for their benefit and at our expense!
Many musicians I know ask how this ever happened. While there are several answers and a variety of contributing factors, there is one prime reason our work is so undervalued. In the mid to late 1990s, as what became the commercial internet was taking shape, a law called the Digital Millennium Copyright Act was created. On Oct. 12, 1998, the DMCA was signed into law by President Clinton after being unanimously passed by Congress. Within the DMCA is what some believed at the time was an innocuous section (512) designed to help fledgling tech start-ups. While some presciently warned it was a Trojan horse, those favoring its inclusion in the DMCA won the day. Section 512 contains a special loophole provision that effectively shields digital service providers from being held responsible for actions (even illegal actions) perpetrated by the users of their platforms. After over 20 years of profiting from this special treatment, I believe it is time for this trillion dollar industry to take the training wheels off, and let us reclaim our markets. We need reform of section 512 now!
Big Tech always fights any reform of safe harbors because they profit from them, plain and simple. Big Tech even opposed the Fight Online Sex Trafficking Act as a “free speech” issue. I was actually stunned at the recent roundtable I attended to hear several participants representing “astroturf” groups shilling for Big Tech publicly lament the passage of the sex trafficking act because (they said) fighting online sex trafficking does not warrant blocking such “free speech”!
To understand why Big Tech fights any and all attempts at safe harbor reform and how they profit from the status quo, let’s examine how a safe harbor like section 512 of the DMCA works. When a user of a platform that facilitates user-uploaded content (like YouTube) infringes the copyright of a musician, that platform has immunity from prosecution if they’ve met certain minimal requirements, because they merely facilitated the infringement. That’s right – platforms like YouTube, where studies indicate 48 percent of all online music consumption occurs, can hide behind safe harbors like section 512 of the DMCA. If that weren’t bad enough, such digital service providers can and often do actually profit from the illegal posting of copyright infringing music via “data mining” or using pirated music for clickbait and advertising. And these digital service providers do not share that revenue with the rightful owners of the music that was illegally posted.
The European Union recently voted to reform the abuse of safe harbor protections in the E.U. Copyright Directive, which contains the highly publicized Article 13 (now Article 17). This provision requires more stringent thresholds for eligibility to receive safe harbor protection. While the devil is always in the details, it appears that one requirement may be upload filters. These filters would detect copyright ownership of materials being uploaded, before they become available for consumption. If the uploader doesn’t either own the rights to the material or have a license from the owner, the upload would be blocked. There is much misinformation about how expensive this will be to implement and the usual outcries from astroturf tech-funded groups that this will “break the internet.” Well, for the first time in the digital era, we will have a model to see if protecting artists’ rights breaks the internet, or merely empowers artists to determine the contours and direction of their own careers and lives.
In fact, right here in the U.S., on April 11, 2018, Congress passed – and the president signed – the aforementioned Fight Online Sex Trafficking Act, which reins in another safe harbor, section 230 of the Communications Decency Act of 1996. So far, over a year after FOSTA’s passage, there is no evidence that the internet is breaking.
Big Tech knows the tide is turning. After the 2016 election, the bloom is off the rose. The aura of Big Tech’s infallibility is fading. Reform of section 512 is needed to protect our rights and restore our livelihoods. As Victor Hugo reminds us: “No idea is so powerful as the idea whose time has come.” Regarding safe harbor reform, the time has come!
Guitarist Ken Hatfield has been a member of Local 802 since 1977. Reach him at www.KenHatfield.com.
To join the Local 802 Artist Rights Caucus, send an e-mail to ArtistRightsCaucus@gmail.com. To join the Indie Musicians Caucus, send an e-mail to IndieCaucus802@gmail.com.
The next meetings are June 11 (Artist Rights Caucus) and June 13 (Indie Musicians Caucus). Both meetings are at 5 p.m. at Local 802 in the Executive Board Room on the fifth floor.