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Irving Azoff is ready to step up his battle with YouTube

By | Published on Wednesday 24 December 2014


At last week’s Music Publishers’ Association Christmas lunch the trade group’s CEO Sarah Osborn used her customary speech to make an explicit commitment that her organisation would be leading the charge next year to get songwriters and publishers a better deal from the streaming sector.

Osborn is far too nice and the MPA far too respectable to say it, but basically 2015 is lining up to be the year when the songwriters and music publishers throw a massive “fuck you all” in the general direction of the streaming sector, which they believe has been structured for the sole benefit of the digital service providers and the record labels. And leading the charge, or at least testing the water, is veteran artist manager Irving Azoff.

As previously reported, Azoff has set up a new company called Global Music Rights which is seeking to directly represent the so called ‘public performance rights’ – in the US, at least – of the songwriters he manages and some other big names too. The aim is to pull those songwriters’ works out of the American collecting societies BMI and ASCAP and force the big licensees of songs to do deals directly, away from the rules and regulations that come with collective licensing.

As also previously reported, this has led to Azoff initiating a battle with YouTube, which, he says, must remove all the songs GMR now represents from its various platforms with immediate effect until it successfully negotiates a licence with his new company. Azoff’s attack on YouTube conveniently coincided with the Google subsidiary unveiling its new Music Key service, ensuring the video site’s big new play in music was accompanied by plenty of controversy before and after launch.

The feud is ongoing, with Azoff’s lawyer Howard King providing something of an update this week, and reaffirming the threat that GMR is willing to go legal on all this in what he is calling a billion dollar infringement lawsuit.

There are currently two elements to the dispute. First, although GMR has seemingly withdrawn the public performance rights of the songwriters it reps – which include Eagles, Pharrell Williams and John Lennon – from their respective collecting societies in the US, it’s not entirely clear when that actually means YouTube no longer has access to those songs through its blanket licences from ASCAP and BMI.

Such licences customarily keep running until a pre-agreed date, even if there are changes in the repertoire each society represents. But, again showing the ambiguities that exist in music licensing, no one seems to be able to tell GMR whether that means YouTube is still allowed to use its songs or not. Though King says the obligation is on YouTube to prove it is licensed, and so far it has not.

But this dispute seems set to really focus on YouTube’s obligations to remove songs uploaded by users to its platform under American copyright law, a familiar debate that has been had several times before, usually with YouTube’s interpretation of the Digital Millennium Copyright Act prevailing. That interpretation says that providing YouTube offers a system via which rights owners can order content be removed, it isn’t liable for all the copyright infringing materials that are routinely available via its user-upload sites.

In a recent exchange of letters between King and Google, the latter said that GMR needed to identify where its songs were currently residing on the YouTube system and then issue a takedown notice for each URL as described in the DMCA. Basically GMR, like the labels, needs to use YouTube’s ContentID system to manage its songs on the firm’s platforms.

King disagrees, citing some of the debate that has surrounded other legal cases where tech firms hosting infringing content have used the safe harbours of the DMCA to avoid liability. YouTube is aware of the infringing content so has an obligation to remove it even without a specific takedown notice, King reckons. It’s a very grey area of American copyright law that is yet to be properly clarified in court.

But King is seemingly ready for a fight. He told The Hollywood Reporter: “It is disingenuous that they can keep their hands over eyes until we tell them the URL. They know where it is. We don’t want this to become whack-a-mole”. Talking tough, he goes on: “This will result in someone blinking, and if it is not them, there will be a billion dollar copyright infringement lawsuit filed”.

So that’s something to look forward to, right? Obviously GMR wants to force YouTube to the negotiating table where Azoff will ask for more favourable terms for his songwriters.

In its more recent negotiations with the record companies YouTube has generally taken the attitude that the labels need its platform as a marketing channel, tipping the balance of power in the royalties debate in its direction. Azoff, though, is more likely to say screw the marketing benefits, which will weaken Google’s negotiating hand. Though the web giant will be aware that if it gives more favourable terms to Azoff’s band of song creators, plenty more will come knocking for a similar deal.