Musician-Led Group Makes Weak Attempt To Spin YouTube’s “Non-Disparagement Clauses” Into Lobbying Tactic

By 01/30/2018
Musician-Led Group Makes Weak Attempt To Spin YouTube’s “Non-Disparagement Clauses” Into Lobbying Tactic

On January 23, Bloomberg published a report regarding the presence of so-called “non-disparagement clauses” in contracts between YouTube and certain musicians. As the video site offered production and promotional assistance to artists like G-EazyBloomberg‘s sources alleged, it required its partners to refrain from publicly bad-mouthing it.

One week later, the music industry — which has been sure to clutch at any anti-YouTube talking point it can get its hands on, no matter how tenuous — has attempted to shape Bloomberg’s report into a lobbying tactic. The Content Creators Coalition (c3), a organization run by artists and dedicated to the pursuit of what it calls “equity in the digital world,” has sent a letter to two high-ranking congressmen asking for them to look into the alleged non-disparagement clauses.

The c3 sent its letter to Senate Judiciary Committee chairman Chuck Grassley and House Judiciary Committee chairman Bob Goodlatte. The missive, which was shared by Hypebot, cites the non-disparagement agreements as evidence that “Google is leveraging its platform monopoly to silence artists.” “Simply put, Google has abused its monopoly power to give artists pennies on the dollar,” the letter reads, “and appears to be further abusing that power to buy the silence of artists who might otherwise speak out and draw public scrutiny to these practices.”

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While potential non-disparagement agreements represent a new talking point for the music industry, the c3’s goal remains the same as it has always been. Last year, the organization ran ads on YouTube in hopes of changing the Digital Millennium Copyright Act’s “safe harbor” provision, which protects sites like YouTube from being culpable for unlicensed music on its platform so long as it responds to video takedown requests in a timely manner.

In its letter to Congress, the c3 once again attacked safe harbor. “In filings to the United States Copyright Office, a cross section of music creators argue that the DMCA’s safe harbors are actually “safe havens” that allow platform monopolies to use the ubiquity of unlicensed free music on their services as a cudgel in negotiations to drive down their own licensing costs,” the letter reads.

Even by music industry standards, this argument is particularly weak. Musicians are free to gather revenue from music to YouTube without signing any non-disparagement clauses, and it is only a small number of hitmakers — those who have received extraordinary support from the video site — who are required to refrain from criticism. Non-disparagement agreements are also “common in business,” as Bloomberg noted in its initial report, though the publication did state that “YouTube’s biggest direct competitors in music don’t require them.”

“We do not have clauses in our standard partner agreements with creators, labels and artists referencing disparagement,” reads a statement from a YouTube spokesperson. “In rare instances when we align our brand more closely to a specific creator tied to new original content or one-off promotional work, we may ask them to sign an agreement that includes general language around conduct. This type of clause is often used in the entertainment industry and is intended to protect companies, not so much from the words an individual may express, but more so their actions, especially in today’s times.”

There are also overriding issues related to the c3’s ultimate argument. Safe harbor, which has been defended in court several times, is in place for a very specific reason. Since YouTube cannot be expected to immediately police the thousands of hours of video uploaded each day by its users, safe harbor allows it to keep running without having to face endless legal attacks from rights holders. If you want online video platforms to exist in any large-scale capacity, you should be very skeptical of any argument that goes after safe harbor — especially when it is built on a flimsy argument.

Plus, I’m pretty sure Chuck Grassley has bigger fish to fry at the moment.

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