by Mike Masnick of Techdirt.com
Last summer, there was some kerfuffle about YouTube allegedly threatening to kick musicians off of YouTube if they didn't agree to license their music to the subscription service it was building. At the time, we wrote about how this was overblown.
As we noted, anyone could still post whatever videos they wanted to YouTube, it was just a question of whether or not you would be in YouTube's partner program, which would allow the artists to use ContentID to monetize other people's videos and a few other features as well. After I wrote that, musician Zoe Keating, who I consider a friend, emailed me the details of her own struggle with YouTube over this issue, and how the deal being offered actually was pretty crappy for her.
Late last week, she posted a similar discussion on her blog, asking what she should do about YouTube, because she wants to use ContentID, but doesn't like some of the other terms in the deal.
Zoe's post has since gone somewhat viral, with many people insisting that YouTube's terms are absolutely crazy. Of course, when you look at the details, the terms are not really that crazy. However, YouTube should change them. Let's dig into the situation to explain why.
Zoe's main concerns were these terms:
1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description will be automatically included in the music service too.
2) All songs will be set to “monetize,” meaning there will be ads on them.
3) I will be required to release new music on YouTube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.
4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.
5) The contract lasts for 5 years.
As she noted, if she didn't sign the agreement, her YouTube channel would be blocked -- though, as we explained in our post last year, and as Zoe added in an update -- she could take her existing YouTube channel out of the partner program and keep it up. However, in doing so, she would give up the ability to monetize her music under the same terms.
Why these terms aren't entirely insane: From my reading of it, YouTube's concern is that consumers who pay for YouTube's fee-based music service will be reasonably angry if there is music they can find on the good old-fashioned free side of YouTube, but which is not accessible after they pay. From a consumer experience standpoint, that is kind of a crappy situation. You could definitely see some subscribers who get frustrated. In fact, I'd bet that there'd be some blog posts somewhere of someone bitching out YouTube's paid service for not having certain music that was available on the site for free... and that post would likely go viral as well, with people talking about how crappy YouTube's paid service was. Also, it wouldn't surprise me if some enterprising copyright holder somewhere would come up with some sort of legal theory involving suing YouTube over this, saying that it now knows which tracks are unlicensed, and thus has to proactively take them down. That is, it's entirely possible that without these requirements, YouTube goes back to facing a massive copyright liability problem.
Why YouTube should change its terms anyway: These are truly edge cases. Most musicians do seem fine with being in the various services, but if they (like Zoe) want to just to make use of ContentID, but not release all their music on YouTube, that should be allowed. As Zoe has told me in the past, the thing she likes about ContentID is the ability to pick and choose what videos to monetize. Use her music in a school project -- and she just let's it go and is happy to see. Use her music in a big commercial feature, and she'll click the button and get some money out of it. But the ContentID portion should be separate from the "release my music" portion.
On top of that, the requirement to release all music on the service, combined with the similar requirement that you have to release the music on YouTube the same time as on any other platform, is unnecessary. Yes, YouTube wants to make sure that its catalog competes with everyone else's. And, fragmenting the music world with "exclusives" is generally a crappy experience, but there should be some reasonable way to allow Zoe to do things like offer up songs to her biggest fans on Bandcamp first. YouTube should be able to create terms that accommodate that, and it's a shame that the company won't do so.
In the end, most of the terms are not really that unreasonable. It only creates an issue in special cases where someone wants to do something a little bit different. YouTube is left with the choice of which crappy edge case it's going to have to make a mess of: either the one where a musician wants to do something a little different, or the one where some consumers might get annoyed that certain music isn't available on its service. YouTube went with option (a), but there's really no reason that the company can't be a little more flexible in designing terms that account for cases like Zoe's.
The other issue is that, once again, YouTube has done an absolutely dreadful job explaining itself. This is not the first time this has happened. In fact, it seems to happen with alarming frequency that when YouTube makes these kinds of policy changes, it doesn't do a good job (or any job at all) of explaining them to the public in a way that makes sense. Frankly, the company could do a much better job being open and transparent about the policy choices it makes and the reasons why it does these things, but for whatever reason, it chooses not to do so.