August 18, 2011 | By corynne mcsherry

Publishers Decide They'd Rather Pay Songwriters Than Lawyers

Google announced yesterday that it has finally struck a deal with the National Music Publishers Association (NMPA) and it is calling the deal an important step forward in making sure publishers and songwriters benefit from the creative uses musicians and fans make of copyrighted compositions in YouTube videos. Equally important, the deal may reflect an increased willingness on the part of content owners to focus on how to compensate artists rather than lawyers.

That’s because the deal also settles years of litigation between Google and many music publishers over allegedly infringing works posted to YouTube. In that suit, the less-famous sibling of Viacom v. YouTube, music publishers and others seek to hold YouTube liable for the allegedly infringing acts of its users. Viacom, for its part, continues to squander its resources on a drag-out fight over activities that took place years ago (Viacom admits it is not challenging current activities on YouTube). The music publishers, by contrast, are looking forward.

While this strikes us as a generally a positive development, we continue to worry about the mechanism. The deal depends on Google’s Content ID system, which facilitates monetization but also makes it too easy for big media to run roughshod over users’ legal rights to make fair use of copyrighted works. We understand that Content ID has gotten more attractive to publishers as the technology has been improved to better identify compositions in addition to sound recordings (think of a cover of a Lady Gaga song as opposed to Lady Gaga singing that song). Note to Google: now that you've adapted the technology to better match the desires of content owners, it’s time to put your engineers and lawyers to work on another improvement: fixing Content ID (and the policies that go with it) so that monetization doesn’t come at the cost of trampling on fair uses.

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