Content hosting services such as Google’s YouTube or Facebook are among the most important digital public spaces. Many entirely new forms of creativity have been inspired and flourish due to new and easy ways of sharing (more or less slightly) modified content on the net. What is more, popular examples of such user-generated remixes or mash-ups rarely stay isolated but lead to video responses – often based on another round of remixing.
Precondition for this ecology of user creativity is not only the technological platform but also an enabling legal framework: while, at least in the U.S., many instances of remix culture fall under the fair-use exemption of copyright, this cannot easily be recognized and thus bears risks of costly litigation. As a result, platform operators such as Google are tempted to pursue policies best described as “delete if in doubt” whether a particular work might infringe copyrights.
But why should copyright holders persecute such “infringements” by ordinary users – often fans and dear customers – who engage in creative work without commercial interests? The reason are commercial revenues generated by platform operators, mostly via advertising. Copyright holders of works (re-)used in user-generated content distributed on these platforms demand their share of those revenues and use their copyrights as a collateral in the respective negotiations.
Strategic copyright enforcement by rights holders at the expense of non-commercial creators is not an empty threat. Quite the contrary, what we observe are continuous (re-)negotiations with recurrent instances of mass-infringement claims, leading to the deletion of hundreds of thousands of user-generated videos – collateral damage.
In a recent study in the realm of the EU-funded COUNTER project, Domen Bajde has conducted an impressive virtual ethnography on how one such strategic copyright enforcement by the Warner Music Group (WMG) had incited something he calls a “web storm” – massive user protests against deletion of their works. On his blog Bajde presents a condensed version of the story, which started with a private agreement between WMG and YouTube:
“Warner Music Group (WMG) was the first company to strike a revenue sharing deal with Youtube. The deal (put simply) included WMG getting a share of Youtube advertising revenue in return for allowing the copyrighted content to be published on Youtube either in the form of “original” WMG content (music videos, etc.) or in the form of user generated videos using WMG content (for example a video of your mom snoring with Madonna’s “Bedtime story” playing background).”
In a way, this private deal between two corporations led to the generation of a public good. This seemingly win-win situation turned loose-loose two years later when renegotiating the terms of the agreement between the same two companies failed:
“Users’ videos containing WMG stuff either got muted or pulled down. You could imagine the users were not to happy with that. A host of user rants and comments ensued, some quite feisty!”
As an exemplary user reaction, Bajde points to the video embedded above. As both contributors to and beneficiaries of the public good that is a user-generated content ecology, these protests may lead to another form of collateral damage – in this case for the corporate brand of Warner.
But WMG, which settled the case with Google for the time being in 2009, is not the only rights holder in constant conflict with Google/YouTube over adequate compensation for usage of contents. This week, to give just the most recent example, the German copyright collective GEMA publicly announced to abandon the negotiations with YouTube after over one year of fruitless haggling (see German press release).
As a final remark with regard to governance across borders, let me highlight another interesting development in the latter case: the negotiation struggles with the transnational YouTube platform motivated GEMA to team up with 8 other national collecting societies listed in the press release: AKM (Austria), ASCAP, BMI and SESAC (all from the U.S.), SABAM (Belgium), SACEM (France), SIAE (Italy), and SUISA (Switzerland). Thus the common transnational “enemy” YouTube accomplishes something the European Union has unsuccessfully striven to do over the past decades: it leads to more transnational integration of the still very nationally rooted collecting societies.