If you have been following it, there's been a long tale in the making about Justin Bieber's rise to fame on the pages of YouTube.... and recently some hype about a new bill that could send him to jail for uploading video covers of other artists' songs.
Most of us know that Biber got discovered on YouTube, after posting performances of himself covering various artist's tunes, all while he was competing in a Canadian talent show. The story goes that the uploads were originally his way of letting distant family members see him perform, since they weren't able to make it in person.
The precocious and talented kid singer got noticed by some producers (Justin Timberlake among them) and eventually got a record deal and a catapult to fame out of it.
In recent months, Bieber has become a bit of an emblem for those who are fighting for net copyright freedom. A non-profit called Fight for the Future has been mounting a "Free Bieber" campaign that looks to be a bit of a sham, in light of the fact that what it criminalizes isn't what Bieber has been doing.
What is Fight for the Future's real motive with their Free Bieber gambit? They are most likely using his example in trying to being attention to a new bill afoot, S. 978, which will criminalize performing others' songs without permission. That, however, will not materially change what's been happening on YouTube for years now. According to legal analysis (see the Copyhype blog) those artists aren't, in fact, performing in the sense that will be prohibited by law. What they are doing is recording and uploading other artists' compositions without licensing them (a fine point of difference by a difference nonetheless).
According to law, it is YouTube that is doing the "performing." Apparently, performing society payments are already made by YouTube out of their revenues from advertising and whatever ways they make their money these days.
On the other hand, strictly speaking, artists should license the songs they cover from the publishers of the songs they upload. And they don't. And no one is enforcing that they do. Why? In all likelihood, because the artists who post their videos on YouTube, singing in their bedrooms and strumming their guitars - aren't making a dime from these recordings and the publishers know it. No one's getting rich.
Well, except maybe Justin Bieber.
And, as the Hollywood Reporter tells it, Bieber won't go to jail for posting videos on YouTube, any more than any other kid uploading bedroom performances of hit songs.
There are several layers of rights needed to use another's song, in particular the synch rights which allow an artist to "synchronize" a composition written by another into a new filmed performance. These are also referred to as the publishing rights for the song.
But, as mentioned, for whatever reasons, publishers have not been aggressively getting artists to take down their videos with uncleared synch rights. And that includes Justin Bieber.
As the Electronic Frontier Foundation (internet rights advocate) points out: "As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users."
Bieber and millions of others have infringed copyrights in posting videos, but no one is going to jail. And no one, not even Bieber apparently, is getting sued for copyright infringement!
As Copyhype goes on to point out, "Given that over 48 hours of video are uploaded to YouTube every minute, the percentage of people who face liability for copyright infringement on the site is effectively zero."
The odds are in favor of the aspiring Biebers of the world, who can safely croon and strum and upload away, without fear of lawsuits or criminal charges, or much more than a takedown notice (and even that's not likely for the typical user). The sheer impossibility and impracticality and futility of enforcing copyrights on casual users is.... a beautiful thing.
If Bieber took down Goliath, it's not YouTube at all, but more likely he demonstrated that one can still get around the lock hold that the publishing world has on music. You can still sing songs for your friends and family and upload them and build a rep for yourself. And the new law won't change that.
