YouTube – Take-It-Or-Leave-It Licensing Deal

by Sandra Aistars

SFHH (Logo 7-27-13-2)This week, Congress is holding the second of two hearings on music licensing.  As consumers, we have more choices than ever for streaming, downloading, sharing, and enjoying music.  Meanwhile, as new services and billion-dollar acquisitions of companies are announced with astounding regularity, independent creators of all types face an array of threats that they might “disappear” from the Internet unless they agree to licensing deals and business practices that cannot sustain continued production of their works.

The press is abuzz with reports of Google’s recently revealed extortionate tactics against indie labels and artists. Rumors are that those who don’t accept YouTube’s take-it-or-leave-it licensing deal for its new streaming service will be barred from offering their own channels on YouTube and prevented from using tools like Content ID to identify their music when it is posted by others without authorization.  This means not only that authorized versions of such indie artists’ work will vanish from YouTube, but that infringing copies, against which Google will still sell advertising, will stay up. 

These practices are not limited to the music world.  Not so long ago, Google changed its image search interface so that full-size, high-resolution images – rather than low-resolution thumbnails – appear in a slideshow-like format.  Google search results now omit specific references to the site where the photographer’s work appears, and instead enable users to page through the full size gallery of images in search results without navigating to the source websites. This switch has resulted in traffic declines of close to 80 percent to photography-rich websites and squanders the investment made by site owners in applying SEO practices to the photographs they license or produce.  Google’s response to photographers and site owners in the U.S.?   “If you don’t like it, mark your site not to be searched.”  Put another way – “the only way to stop us is to remove yourself from the Internet.”

Likewise, authors have been recently held hostage by Amazon in order to extract more favorable terms from publishers. When negotiations between Amazon and Hachette stalled, the online retailer “disappeared” Hachette authors from their pages by eliminating Buy buttons for certain books, preventing pre-orders of new titles, delaying shipments of some Hachette products, and even prompting customers to buy  “similar” works instead of the Hachette title being sought. 

It should give us all reason to pause when companies known for evangelizing the benefits of making creative work available on the Internet and through new technology platforms instead use their market power to make the work of indie artists and creators inaccessible, except through infringing means.   Congress, the DOJ and the FTC should ask why this is happening.  

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