How the meandering legal definition of 'fair use' cost us Napster but gave us Spotify

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From DMCA takedowns to Content ID filters, record labels continue to crack down on online music sharing.

describes it, began decades before TikTok made the scene. Elder millennials remember the good old days of Napster — followed by the much worse old days of Napster being sued into oblivion along with Grokster and the rest of the P2P sharing ecosystem, until we were left with a handful of label-approved, catalog-sterilized streaming platforms like Pandora and Spotify. Three cheers for corporate copyright litigation.

Some background: in 2007, Viacom filed a billion-dollar copyright suit against YouTube, alleging that the company had encouraged its users to infringe on its programs by uploading them to YouTube. Google — which acquired YouTube in 2006 — defended itself by invoking the principles behind Betamax and notice-and-takedown, arguing that it had lived up to its legal obligations and that Betamax established that “inducement” to copyright infringement didn’t create liability for tech companies .

Once Content ID determined that a user was attempting to post a copyrighted work without permission from its rightsholder, it consulted a database to determine the rights holder’s preference. Some rights holders blocked any uploads containing audio that matched theirs; others opted to take the ad revenue generated by that video.

But it’s not just creative borrowing, remixing and transformation that filters struggle with. A lot of creative work is similar to other creative work. For example, a six-note phrase from Katy Perry’s 2013 song “Dark Horse” is effectively identical to a six-note phrase in “Joyful Noise,” a 2008 song by a much less well-known Christian rapper called Flame. Flame and Perry went several rounds in the courts, with Flame accusing Perry of violating his copyright.

It’s pretty trivial to write a filter that blocks exact matches: the labels could upload losslessly encoded pristine digital masters of everything in their catalog, and any user who uploaded a track that was digitally or acoustically identical to that master would be blocked.

 

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