Is the music industry shooting itself in the foot?

After Viacom’s negotiations with YouTube (Google) fell through, Viacom went through all the videos on YouTube and had removed those videos which violated Viacom’s copyrights. Well, not exactly. It would have been impossible to go through all the videos on YouTube and make an accurate determination as to which ones violated Viacom’s copyrights. There are simply too many, and the process cannot be accurately mechanized with today’s technology. What exactly Viacom did do is an open question. Certainly they had a lot of videos removed. Most of those, we may hope, were actual copyright violators, at least according to Viacom’s interpretation of the copyright law. Some clearly were not. And it is quite implausible that the videos removed included every single video that does violate a Viacom copyright.

In this post I’m concerned particularly with music copyrights. It is a common practice on YouTube, almost certainly illegal in many cases – perhaps in all cases – but arguably quite fruitful artistically, for non-copyright-holders to use copyrighted music in their videos. Sometimes it is an integral part of the video, and other times it is just background music. Until recently, it was also common for those who engaged in the aforementioned practice to identify, in some text format, the music in their videos. This latter practice served two functions. First, it enabled those interested in the music to find those videos. Second, it enabled those who watched the videos, but who were not previously familiar with the music, to find better copies of the music itself – often, I would imagine, for purposes of purchase. It also had the unintended function, so it turns out, of enabling copyright holders to find violations easily.

But things are changing. In the aftermath of the Viacom purge, video makers are recognizing that they do not have an incentive to identify the music in their videos. Without a text format identification of the music, each copyright holder is searching for a very specific set of needles in a large haystack. So this form of copyright violation is likely to continue – indeed to continue with greater impunity than in the past. The difference is that it will no longer benefit copyright holders by publicizing their products.

In principle, in deciding how aggressively to enforce its copyrights in this context, a holder faces a tradeoff between, on the one hand, the free advertising provided by the videos and, on the other hand, (a) the possibility that the videos substitute for the genuine musical product provided by the copyright holder and (b) the possibility that video makers would be willing to pay for copyright use if they were not able to steal it. The problem is, neither (a) nor (b) is really plausible. The audio track from a video designed to stream over moderate-bandwidth connections – in YouTube’s case, not even in stereo – is not at all a close substitute for a CD or an iTunes download. And as for (b), if you didn’t laugh when you read it, that’s probably just because I told it wrong. And then, of course, there’s the fact that enforcing these copyrights doesn’t actually stop people from violating them; it just stops people from violating them in ways that might benefit the holder.