The Emergence of YouTube® Music in a Post-Napster® World

Will La Salle III is

The Glow In The Dark Lawyer

* — The author acknowledges a commitment to alternating between Intellectual Property and Admiralty Law topics. However, the transition from Google Play Music® to YouTube® Music has been of particular interest to him recently, and hopes his audience will forgive his seemingly singular focus on Intellectual Property matters. Special thanks to Joseph La Salle Jr and Morgan Robinson for encouraging the topic and contributing discussion while the author was still feeling out the subject, and to his wife Christine for taking care of this kids so he could bang this week’s submission out.

William La Salle III, Esq. is The Glow In The Dark Lawyer . Will practices intellectual property law as a contract attorney with Thrive IP,® and maritime law under the banner of his own firm, Glow In The Dark Law PLLC (GITDLaw). Thrive IP® is headquartered in North Charleston, SC and has attorneys in various locations along the southeastern United States seaboard. GITDLaw operates from Smithfield, VA, in historic Isle of Wight Country, Virginia. The following is presented for informational purposes only and is not intended to provide legal advice, nor is it intended as an offer to create an attorney-client relationship. If you or someone you know needs intellectual property or maritime legal advice, it is recommended that you immediately seek the services of a licensed attorney.

November 30, 2020 — The drive from Charleston, SC to Newport News, VA is long. It’s dull. You could even say it “sucks.” Particularly when you have to go both directions in a single day because you need to drop your son off before a law school exam early the following morning. What does any of this have to do with YouTube® Music? Nothing, directly. But it’s my muse for the topic, and a bit of background allows for the choice of subject to make a little more sense from the author’s perspective.

Back in the day, not so long ago, the only music on YouTube® (owned by parent Google® LLC) were videos that various users would upload to its principal service. Google allowed its subscribers to maintain a library, if they so chose, associated with their credentials and accessible through Google Play Music®. This service doesn’t exist anymore, and this article is not intended to be an evaluation of Google Play Music®’s demise. Though at the end, I will offer critique of its successor. Google Play Music® shuttered for good in October 2020, after a period during which it was suggested and encouraged that the user migrate their library of songs to YouTube® Music. The author made the transition, but not before buying a substantial external hard drive and downloading the contents of his library. Apparently, I wasn’t the only one to think of this. Just ask Mr. Collins (https://www.forbes.com/sites/barrycollins/2020/05/13/google-play-music-is-dying-dont-let-it-take-your-mp3-collection-with-it/?sh=2bf9e9d445c2).

When Google Play® Music shut down for good and I began using YouTube® Music, the first thing I noted was that my library, if it even existed as my library anymore, was organized in a totally different way. But far more frustrating than that, it would not continue to play via Bluetooth on my truck radio when my phone went to sleep. Google Play® Music didn’t do that. I no longer have unfettered control over the playback of my own files. I’ll be honest, that makes me a little angry. To rub salt in the wound, where YouTube® recognizes that a track that I own has an associated video stored in YouTube®’s repository, is substitutes the video for the audio file during playback. That wouldn’t be so bad, except for the sound quality of video playback in comparison to pure audio files, at least when it comes to playback on my iPhone® 11, is terrible. So I’ll be listening to an album at a reasonable volume, then a video track plays, I’ll have to crank it way up to hear it… and then the audience is now deaf once the next track cycles through. I’m sure there is a way to fix this, but I shouldn’t have to.

YouTube® Music reminds me a little of Pandora®, except without the commercials. Because it lacks commercials, it reminds me a lot of Napster®. Back when Napster® was, you know, the bane of Metallica and Dr. Dre. Which finally brings us to the academic purpose of this blog, which is so I may lead the audience in an analysis of YouTube® Music, and how it is different from Napster®, and why I think if enough people like me pooled together in a bid against YouTube®, it might open the door to a next generation of digital media trouble. In order to understand how digital media works in the legal realm, we must first understand how Title 17 (The Copyright Act) ended up looking like it currently does. We begin on the World stage.

Contrary to belief in some corners, the Digital Millennium Copyright Act was not the consequence of Napster’s downfall. DMCA actually came before. Before discussing DMCA, though, lets first consider how DMCA came to be. Let’s turn to the World Intellectual Property Organization (WIPO). There are two WIPO treaties to which the US is a signatory, and which are the catalyst for DMCA. They are the WIPO Copyright Treaty (WCT), and the WIPO Performance and Phonograms Treaty (WPPT). As described on WIPO’s web page, the WCT “is a special agreement under the Berne Convention which deals with the protection of works and the rights of their authors in the digital environment. In addition to the rights recognized by the Berne Convention, they are granted certain economic rights. The Treaty also deals with two subject matters to be protected by copyright: (i) computer programs, whatever the mode or form of their expression; and (ii) compilations of data or other material (“databases”).” You can read the WCT here: https://wipolex.wipo.int/en/text/295157.

The WPPT “deals with the rights of two kinds of beneficiaries, particularly in the digital environment: (i) performers (actors, singers, musicians, etc.); and (ii) producers of phonograms (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds).” You can read the WPPT here: https://wipolex.wipo.int/en/text/295477. These two treaties are the crux of how the US treats digital media in terms of Copyright law as set forth in the DMCA. If you’re feeling really frisky, you can read all of Title 17 here: https://www.copyright.gov/title17/title17.pdf. The DMCA encompasses 17 U.S.C. §§ 512, 1201–1205, 1301–1332; and 28 U.S.C. § 4001. The relevant section to this discussion, and the reason YouTube® Music legally exists in large part, is 17 U.S.C. § 512’s “safe harbor” provisions. These provisions allow, in essence, for a streaming platform to be provided with immunity from suit in the first instance so long as they comply with a copyright owner’s take-down request.

Now let’s get to the good stuff… Metallica! When Metallica and Dr. Dre joined together as predecessors to A&M Records, et. al. and sued Napster®, why did fair use, first sale, and safe harbor provisions not protect them? To put is succinctly, it is because Napster® operated on a peer-to-peer architecture. There was no method through which Napster® could regulate what got traded when or where; they were merely a forum for the immergence of a “digital wild west.” Metallica in particular has caught a lot of flak over the years for Napster®’s downfall. They’ve been accused of being sell-outs. Selling-out for going hard at Napster. Selling-out to the MTV generation. Were they a sell-out? Metallica would say yes — they “sold out” every performance. While not directly on point to the discussion at hand, the impact on the digital transition for musicians emergent at the cusp of the internet revolution, such as Metallica, makes for a whole host of other interesting things to talk about. You may whet your whistle by considering this YouTube® offering: https://www.YouTube.com/watch?v=d_voHyPGLR4.

What about Dr. Dre? When Eminem was lamenting that “if you could afford a computer you could afford a $16 album,” was the starving artists’ lamentation legitimate? Was it even relevant? Was it right that on the coat tails of Metallica v. Napster came a conglomerate of RIAA’s membership to litigiously crush Napster® out of existence? There is no definitive legal answer to assuage the moral ones, so the reader is left to decide. See Metallica v. Napster, Inc., No. C 00–3997 MHP, 2001 WL 777005 (N.D. Cal. Mar. 5, 2001), aff’d sub nom. A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002).

There have been a lot of technological changes for the digital music industry since Napster® fell. DRM controls became commonplace not only in music files, but on DVDs as well. And that’s in addition to CODECs, but that is discussion for another day. So let’s get back to Google Play® Music. When you upload a file to Google®’s repository colloquially known as “your” library, Google® knows (or thinks they know) whether or not you own it because of, inter alia, DRM controls. When you upload that copy of Memory from your Cats album you don’t admit to listening to in the shower, that file you uploaded belongs to you. You own it. If anything, Google® is a bailor for your digital benefit. When you open Google Play® on your device and access your library, Google® didn’t restrict how the content was played back to you because it was your own content. This is the crux of Copyright protection and personal property ownership. So why do I think YouTube® Music is now doing wrong by us?

YouTube® Music is similar to Pandora®, in that you can stream content you don’t currently own, simply by making a selection. Whereas Pandora® is more global (pick an artist and they play a blend of that artist and artists similar intermixed with the occasional commercial), YouTube® Music will let you listen to a brand new album, from track 1 to track last, uninterrupted, even if you don’t own any of the content. That is, unless you allow the app to move to the background. Then, all of a sudden, you are contemplating deeply the sound of silence intermixed with the sound of your own pulse. The fact that you get unfettered access as long as it stays in the foreground makes YouTube® Music a lot more like Napster® than Pandora®, in my opinion, particularly due to the lack of commercials. Am I complaining? Yes… and no. Yes, because of the gripes with playback quality and lack of control over my own files that I previously cited; and no, because I believe it was inevitable that we as a society were either going to wholly take the deep dive to subscription services for the sake of instant gratification, or one of the tech powerhouses was going to take the leap for us. It appears YouTube® Music is on its way.

So where does this end up in the future? That’s why I wrote this week’s blog. The court’s have already decided that “First Sale” (that is, where the copyright owner gets a royalty for the first sale but none subsequent) doesn’t apply because, among other things, there is no corporeal “thing” to point to that we are trading around. At this point we’re talking about collections of electrons manipulated by coding. So James Hetfield isn’t suing YouTube® on that theory. But what about fair use? What happens when programmers outside of Google® figure out how to defeat YouTube® Music’s restrictions so that they can “burn” clean copies of streamed content? There’s no fair use there, because, arguably, YouTube® is pushing the content on us, rather than us pulling the content back from YouTube®. Safe harbors don’t apply for the same reason. So how is this legal? Surely, because of licensing. It would be interesting to do a study and determine how all this is cost effective for Google® and YouTube® in the absence of commercials… and I’m betting that the level of commitments gained due to not wanting to tolerate not having access in the background has a lot to do with it. But that is also a discussion for another day.

Will La Salle III, Esq. is The Glow In The Dark Lawyer℠ and practices IP and Maritime Law Internationally from Smithfield, VA