The State of Copyright Protection Practice

The podcast I do with my brothers @SamRhody and @MnemonicDevice has been taken down because of a copyright dispute. I'll walk you through what that looks like, and after that we'll discuss what this implies for the internet and art as a whole.

What Happened?

Eight days ago, Spotify sent me this notification email:

Hi there, Your show The Eminent Dead and Friends appears to contain copyright-protected music. Please respond in the next 3 days, or 7 of your episodes may be removed from Spotify and all other listening platforms.

When I started throwing episodes together, I wanted some intro and outro music. I went looking for something in the public domain. I settled on The Children's March by Percy Grainger, as performed by the USMC band. I've been uploading my shows for nearly two months. Then an automated scan came by, detected possibly copyrighted music, and someone filed a grievance.

At first I didn't notice. The email address associated with the show has never received anything other than auto-generated notifications for things I already knew about. I first realized there was a problem when people started telling me they couldn't find my stuff. At that point I checked my email, and I found this notice.

Hello, The following content has been removed from our service. Our automatic review tools identified third-party music in this content and you have not responded to our inquiry about the use(s). Title: The Lost World Chapters 3-6 [...] If we do not hear from you within five (5) days, we will assume you do not contest the takedown. Thank you for your cooperation, Spotify Content Protection

Okay. That doesn't tell me who is claiming what. If I had clicked the button in the first email, I would have been taken to a place where the information is listed, but by the time they take the episode down, I guess they think you can't use that information anymore. All I had was a link to an appeals form where I had to give reasons as to why I ought to be allowed to use my stuff. That's kind of hard when you don't know which stuff even you're asked about. At least they said it was music, which helps since there's only one song on the show.

The claim was made by an entity called Naxos. Naxos, as a quick googling tells me, is a conglomeration of record labels. Under their Altissimo! label, they publish CDs for the armed forces bands. Their scan found my recording bits matched their CD, and so they put in the claim. With that reconstruction of events, here's the appeal I provided:

The music used is in the public domain. The composition is because it was made in 1918-1920, and has entered the public domain. The performance was done by the USMC band, which releases music directly into the public domain in accordance with USC 17 105. Naxos, under it's Altissimo label, cannot claim exclusive publishing right to music in the public domain. Perhaps they'd have an argument if I bought the CD, but I did not source the music through Naxos. I picked up the music directly from the USMC band website. I apologize for getting to this late, but I did not until just now realize you'd sent seven separate emails, one for each episode that uses the music. Music taken from here: https://www.marineband.marines.mil/Audio-Resources/Marine-Band-Albums/Marine-Band-Showcase-Volume-Two/ USMC performances are in the public domain (which I have also confirmed with the Marine band.) Relevant section of US law: https://www.law.cornell.edu/uscode/text/17/105 Date of composition shown here: https://en.wikipedia.org/wiki/Children%27s_March:_Over_the_Hills_and_Far_Away Thanks! -Hank

That's where things stand as of now. I submitted the first appeal five days ago, because only then did I notice that there were seven separate emails, one for each episode of the podcast. I'm waiting for their interns to review it and get back to me. In the meantime, the shows remain down.

A Look at the Broader Internet

The really interesting aspect of the problem is how it shifts the state of play between copyright protection and artistic creation. Let's consider the bigger picture.

This is the first time I've had this sort of thing happen to me. I've heard about it happening quite a bit on YouTube, and I assume it's common on every respectable platform that allows users to upload their own creations. Here's The Critical Drinker on his livestream watching the Resident Evil trailer and commenting on it with other YouTubers. He repeatedly pauses the trailer to say something and then restarts it. Just after the three-minute mark, he says it out loud. "Sorry that I have to keep pausing it," to which a guest responds, "No problem. I know. You get copyright claims, right?"

It's a bunch of people who talk about entertainment news giving their analysis. And, although this is irrelevant from a legal point of view—what is a trailer except an advertisement to watch the movie? If people are spreading your ad, isn't it in your best interest to let them do so?—the commentary features copyrighted material. Regardless, this is a textbook case of fair use.

And yet he keeps pausing the video to avoid a copyright claim. Why? Because despite the legal right to display and comment on the trailer like this, a bot will submit an automated takedown request. (The pauses are meant to foil the automated detection, but legally they make no difference.) There are several tactics I've heard of and seen to fly under the bot's radar. My favorite is The Little Platoon, who crops out a corner of the video with a cartoon of him reading a book entitled "How to avoid copyright on YouTube."

How We Got Here

Speaking as a denizen of the internet: We've earned this. Digital anything is extremely easy to copy. This goes for software piracy, to Napster music sharing, to students plagiarizing papers. That, and people are always eager to latch on to any exception, however tendentious, as long as it gets them what they want. I've seen people try to claim parody when there's nothing funny about their end product, and I've seen fair use cited in defense of reaction videos, where the 'commentary' is provided by the streamer watching the video alongside the audience, and occasionally getting up to use the facilities while leaving the thing running.

YouTube is a company built on copyright infringement. When Google bought the thing, it wasn't even clear whether they could ever make money off of it because of the legal liability of every last copyright violation on there. Bringing it back to Spotify, I can understand why they took my stuff down on three days' notice. From a financial standpoint, it makes a lot more sense for Naxos to sue Spotify than to try and recover damages from a penniless podcaster with thirty-four total downloads.

And for Naxos, the other record labels, and every other multinational intellectual property conglomerate, this is why they use automated scans and claims. Because if a human has to write up every claim every time some kid in Chillicothe adds a power ballad to a compilation of anime clips, they're gonna need a whole lot more unpaid interns. Which in turn means there's no longer any hiding by keeping a low profile. If they're contesting my podcast, there's nowhere lower to hide.

The Really Big Picture

What does all that imply for society? Step back and look at my case from first principles. We want to protect the creative output of artists, so there are copyright laws. Good. We want to allow the common culture of mankind to be usable, so there's the public domain. Good. And yet, a specific attempt to use the public domain in accordance with copyright laws is preemptively foiled by the systems we've set in place to protect art. Copyright protection is being used to stifle artistic creation.

When I say "the systems," I mostly mean the legal one. I'm just a citizen, trying to work within the law as I understand it. Perhaps I should have hired a lawyer to advise me first. Note what that does: it takes me from a man with rights acting in accordance with them to a supplicant asking for permission to do what I'm supposed to be able to do. Supposing Spotify rules against me (and I only get the one appeal, with a sharp limit on the words I can use to make my case), I can understand why, legally speaking, my rights haven't technically been violated. But unless I want to live under a clerisy of lawyers that's not good enough.

It's also not clear to me that copyright law works at all in some new domains. Take the meme, for example—words on a picture. Did you create the picture? Then how can you distribute it? Memes as they currently exist could not withstand the law as it currently exists were it rigorously applied. So much the worse for the law.

The last time I ran into a similar issue, I was making board games with @MattBalzer. Our publisher refused to print any more copies because we were using real historical people as characters, even though that was explicitly allowable under Wisconsin law. Without rehashing that story, note that it had the same effect. My attempt at artistic creation was stifled by overzealous application of intellectual property protections. (Not that I intend to stop making the podcast, but what does that matter to those who can't hear it?)

Spread that out over the whole of society. We're happy to host your artistic creations, so long as you abide by our terms of service, which allow us to dump you for any reason or no reason at all. No one will listen, but we'll scan to find infringing music anyway. We'll allow you to appeal, but you're up against a multinational conglomerate that spends more on daily legal expenses than you make in a year. Technically, I haven't lost yet. But recall the Drinker pausing that trailer. Because I've entered into the conflict, I've already lost.

The United States Constitution provides for intellectual property protection "To promote the Progress of Science and useful Arts." If you take a look at the system and see that it acts to stifle new entrants to the field or the free exercise of our legal rights, then perhaps we ought to revisit that system.