Upstream without a payment

Taylor Swift is right. Rocker Nikki Sixx, producer T Bone Burnett and music industry mogul Irving Azoff are right. So are hundreds of artists petitioning Congress and the European Commission. Now that Apple Music has seemingly seen the light, the question is whether they’ve gone far enough in speaking up for fair pay and control over copyrighted music.

Since the Digital Millennium Copyright Act (DMCA) was passed in 1998, internet service providers have been allowed to wink at unauthorized uploads of copyrighted works, and artists have been vilified for objecting. In 2001, Lars Ulrich of Metallica criticized Napster for abridging his band’s rights. He and other artists saw that this stance could cost them, as “fans” defiantly mocked them and continued to take music for “free.”

Now, artists and industry executives are uniting against unauthorized uploads, and the public may be ready to see the issue from their vantage point.

The music community’s grievances are the following: (1) The DMCA allows internet service providers to build ad-based businesses built upon infringing content that the artists cannot effectively police through “notice and take down” procedures; (2) If and when service providers pay the artists, it’s on the providers’ hopelessly complex terms, resulting in payments that offer fractions of pennies per view; (3) Service providers offer “free” teaser music to the public when copyright owners should have the absolute right to control distribution of their music.

The DMCA was enacted to preserve innovation while service providers grew their businesses unencumbered by “ruinous royalty rates” and the threat of litigation over user-generated content that they could not feasibly control. These “safe harbor” provisions substantially benefited AOL and a host of smaller companies that no longer exist.

In hindsight, one point is clear: Free music streaming is fair only for original, home-based music. However, what the public streams mostly comprises of premium, professional content. This content is expensive to create, risky to market and requires many behind-the- scene professionals.

Every minute, 400 hours of footage is uploaded to YouTube, much of it synched to copyrighted music. This gives YouTube a distinct advantage over Spotify, Tidal, Apple Music and other services that do not offer user-generated streaming of works they do not control.

Much of this YouTube footage is monetized with paid ads. YouTube retains a minimum of 45 percent of this revenue, at prices it sets (but does not reveal), irrespective of the content’s creation costs.

For content created by YouTube, it’s a different story. As Azoff wrote in an open letter to YouTube in May, “If a fan wants to watch [a] YouTube series… that fan has to subscribe to YouTube Red for $9.99 a month. But the same does not apply to music.”

Azoff and others are proposing a “take down and stay down” provision that would require digital providers to use their technological prowess to ensure that new uploads of copyrighted work would be refused or taken down immediately without further intervention from the copyright holder. The technology is available, as it is used for child pornography and YouTube’s Content ID system. But a Google-only solution is not sufficient. This is an internet-wide issue.

Taylor Swift was right when she demanded Apple stop giving away free, 90-day trials of Apple Music without compensating the artists that make the service possible.. Apple responded quickly to her concerns and made arrangements to pay musicians during a user’s trial period.

And Apple was right when it proposed July 15 to the U.S. Copyright Royalty Board that owners of compositions should receive a simple, per stream rate on every authorized stream.

I would argue for stronger, industry-wide measures: a complete repeal of the safe harbor provisions of the DMCA and a prohibition on any unauthorized uploading of the property of others.

The DMCA has outlived its initial purpose of protecting the growth of new digital businesses. In just 18 years it has helped Alphabet/Google (the parent company of YouTube) create a $495 billion dollar oligarchy, doing so on the backs of artists who create the professional content that make Google the technological monolith it is today.

The fight may be lopsided, given the tech lobby’s substantial spending power in Washington, but the music community has mobilized en masse. Four months ago, 180 artists wrote an open letter to Congress about the issue, followed by 1,000 artists who subsequently sent a similar petition to the European Commission.

The music industry has endured severe, career-ending losses over the past 18 years, and it is high time significant revenue and legal respect started flowing the other way. Contrary to the views of tech executives, it’s a problem that requires immediate congressional action and a negotiated solution that better supports musicians’ rights.

Young, a musician and former director of licensing and contract administration for Universal Music Group, teaches in the music industry program at the University of Southern California’s Thornton School of Music.

The views expressed by Contributors are their own and are not the views of The Hill.