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Epidemic Sound sues Meta for copyright infringement

By Chris Cooke | Published on Friday 22 July 2022

Production music company Epidemic Sound has sued Meta in the US in order to, and I quote, “stop the theft of music created by hundreds of musicians, songwriters, producers and vocalists, theft occurring knowingly, intentionally and brazenly by Meta on its Facebook and Instagram social media platforms on a daily basis”.

Epidemic Sound, of course, is a production music business best known for providing music to online creators, although its client base is now much wider than that. It operates entirely outside the collective licensing system, meaning the musicians it works with aren’t members of any collecting societies.

That means that Epidemic directly controls – and therefore can license – all elements of both the recording rights and the song rights within the music contained its library. And although that approach – which means it has ‘complete buy-out’ deals with the musicians it works with – has proven controversial in parts of the music community, it does mean the company can offer online creators the kind of one-stop-shop global licences they usually need.

When creators license music from Epidemic, they can post videos containing that music to different user-upload and social media platforms safe in the knowledge that no music company is going to pop up and try to block the content or claim any ad monies the video has generated. Though, of course, if people use Epidemic’s music in their videos without licence, it will be Epidemic itself that pops up trying to get the video blocked.

Although, to do that effectively, the production music firms needs access to the rights management tools provided by the different digital platforms. And, to date, with Facebook and Instagram, it hasn’t been able to get access to all of those rights management tools. Which is one of the grievances included in this new lawsuit.

“Meta has deliberately prevented Epidemic from being able to protect its catalogue from infringement across Meta’s platforms”, this week’s legal filing states. “Meta offers rightsholders certain rights management tools designed to enable copyright owners to identify, protect and derive value from their works. Meta has repeatedly refused Epidemic access to the rights management tool for music content, without a legitimate explanation”.

However, it’s important to note, that lack of access to Meta’s music rights management tools is just one of the complaints in this lawsuit, with the other allegations in the legal filing accusing the social media giant of more blatant copyright infringement.

Because, the lawsuit adds, the issue here is “not merely users posting infringing works that Meta has failed to take down, as Meta would like to believe and as it will undoubtedly tell this court, but much of this infringement is caused and done by Meta itself”.

Epidemic claims that its music isn’t just found in videos posted by users to Meta’s platforms, it is also in Meta’s own audio clips library. The lawsuit continues: “Meta has created a curated library of music that Meta accumulates, stores, organises by genre and that it makes available to its users of its social media platforms for downloading, streaming, and use of such music in video content and posts”.

Included in that library, Epidemic says, are tracks that it owns. “By including Epidemic’s tracks in its music library without authorisation”, it continues, “Meta is actively offering Epidemic’s tracks for download, streaming, user synchronisation, reproduction and distribution to its (unlicensed) users without a proper licence or any other authorisation from Epidemic”.

And in case you’re thinking maybe Meta got that licence or authorisation from a third party distributor, Epidemic adds that it has not “authorised any label, publisher or distributor to make the tracks (or any other music owned by Epidemic) available on the music library”.

“Moreover”, it adds, “Meta is deriving substantial financial benefit through advertising revenues and increased user engagement derived from the inclusion of the tracks in its music library. Meta has not shared, and is not sharing, any portion of such advertising revenues with Epidemic in connection with the unauthorised use of Epidemic’s tracks and has not remunerated Epidemic in any way for the use of such tracks”.

Epidemic also takes issue with various tools now available on Meta’s platforms that allow users to pull audio out of other users’ content – which might include unlicensed Epidemic music – and then use that audio in their own videos.

It claims: “Meta has created tools – Original Audio and Reels Remix – which encourage and allow its users to steal Epidemic’s music from another user’s posted video content and use in their own subsequent videos, resulting in exponential infringements on Meta’s platform, at Meta’s hands”.

As for the scale of the infringement caused by all this, the lawsuit says: “Epidemic knows of over 950 of its music tracks that have been reproduced, stored, made available to, and distributed to its users by Meta through its music library or through its other content sharing tools without a licence. Epidemic is confident that further research would reveal additional infringements”.

The lawsuit also confirms that Epidemic has made Meta award of these issues. In fact, it says, “Epidemic has repeatedly put Meta on notice of its infringement and has tried to engage in a meaningful dialogue with Meta so that Epidemic’s intellectual property can be protected and licensed”.

“Epidemic has, on over a dozen occasions, informed Meta that the infringement on its platforms spans beyond user generated content and that Meta itself is actively storing, offering, curating, reproducing, distributing, and performing Epidemic’s music to others without a licence or authorisation through its music library and its Original Audio and Reels Remix features”.

With that in mind, Epidemic states: “Meta is not merely aware of this infringement – it has actively infringed, as well as participated in, encouraged and enabled such infringement. In fact, Meta has created tools whose primary purpose is to increase the amount of theft on Facebook and Instagram. Meta’s unlawful conduct has resulted in more than 80,000 new instances of theft of Epidemic’s works per day, all directly by, or at the encouragement of, Meta”.

As for what Epidemic wants from the courts in California, well, “a declaration that Meta has directly and/or secondarily infringed Epidemic’s copyrights under the Copyright Act; a declaration that such infringement is willful; [and] a permanent injunction enjoining Meta’s infringing conduct”. Oh, and, of course, “damages, statutory or otherwise, for Meta’s infringement of Epidemic’s works”.

Statutory damages in copyright infringement cases in the US can be up to $150,000 per infringement and, remember, in each of those 950 tracks Epidemic reckons are being distributed across the Meta platforms without licence there are two copyrights – one in the recording and one in the song – both of which the production music firm owns. So that’s potentially around 1900 copyrights being infringed.

We await with interest to see how Meta responds.