Zoë Keating Fights YouTube to Control Her Music and Reputation
The Google-owned company has used aggressive negotiating tactics and attempts to manage media coverage.
Last month, Zoë Keating found herself on the wrong end of a phone call
with one of the world's most powerful companies. A representative from
the Google-owned video platform YouTube foisted a raw deal upon Keating,
the terms of which appeared unfair and inflexible.
"Wow, that's pretty harsh," said Keating.
"Yeah, it's harsh and trust me, it is really difficult for me to have this conversation," the caller responded.
It was difficult for Keating, too.
According to a transcript of the conversation provided by Keating,
YouTube told the successful independent cellist and songwriter that,
unless she opted in to YouTube's new streaming service, Music Key, by
signing a proposed contract without stipulation, her ability to earn ad
revenue from the 9,696 videos featuring her songs, and their roughly
250,000 monthly views would be effectively revoked; her music would
appear on Music Key anyway; and furthermore, YouTube would have to block
her from uploading new material from her current account.
Keating's blogpost about the exchange went viral. It garnered media attention from outlets such as The Guardian and
Digital Music News. Some journalists then received demands for headline
retractions from YouTube. To many industry observers and advocates for
musicians in the digital realm, the dramatic exchange provided a rare
look into YouTube's aggressive negotiating tactics, media meddling, and a
public effort to discredit Keating's objections.
YouTube, which has roughly a billion monthly users, has long been used
as a streaming service. Most songs are uploaded to the site. Announced
last year, Music Key is YouTube's plan to compete with the market's
dominant forces: Pandora, Spotify, and Apple's new player in the
streaming game, Beats.
To launch the service, which is currently in the beta-testing phase,
YouTube must strike deals directly with sound copyright owners.
Arrangements with the major labels materialized last year, but one
prominent holdout was the indie label umbrella organization Merlin. In
June of last year, YouTube's head of content and business operations
told the Financial Times that the company planned to begin
blocking videos in "a matter of days." Within a month, however, YouTube
was "back-flipping and backtracking," according to a source quoted by
the Financial Times.
YouTube now appears to be wrangling independent artists who manage their
own material. Keating's objections echo the Merlin dispute, but she
lacks the collective bargaining entity's clout. To compensate, she's
exhibited a level of transparency that's rare in an industry in which
non-disclosure agreements reign.
Under Keating's current contract with YouTube, she is a music partner,
which means she has access to YouTube's ContentID system, an interface
for monitoring her own uploads as well as third-party videos that
feature her music. In a testament to Google's content-trawling
faculties, ContentID is constantly scanning YouTube for descriptions,
metadata, or audio file details for which Keating holds copyrights.
Through ContentID, Keating then has an option to mute audio that matches
her music; block the entire video from being viewed; monetize the video
by running ads against it; and track the video's viewership statistics,
according to YouTube's website.
As part of Keating's current agreement with YouTube, she cannot disclose
how much she makes from the service. But, Keating revealed in her
blogpost that, as the sound recording copyright owner and featured
artist, about 250,000 monthly spins on Pandora earns her roughly $324.
For the same amount of plays on YouTube, she wrote, the compensation is
"far less."
Keating has disclosed her earnings from streaming services in the past. As noted in the Express cover
story on Pandora (See "The Tyranny of Free," 11/19/14), Keating
disclosed in detail her paltry earnings from various internet radio
services in 2012. In regards to Music Key, however, the issue is less
about the proposed compensation than it is about control.
Keating objected to several components of the proposed Music Key
contract, including a requirement that all of her catalog must be
included in the free and premium tiers of YouTube and Music Key; that
her new releases must appear on Music Key at the same time as other
services; and that the contract lasts for five years.
YouTube's representative reportedly told Keating that if she declines
the proposed terms, "the content that you directly upload from accounts
that you own under the content owner attached to the [pre-existing]
agreement, we'll have to block that content." If she doesn't opt in to
Music Key, the transcript makes clear, her ability to selectively
monetize videos featuring her recordings will disappear.
David Lowery, the Cracker and Camper Van Beethoven songwriter and an
outspoken advocate for artist rights in the digital music industry,
underscored Keating's objections. Denied by Music Key's proposed terms
is her ability to strategically "window" releases and offer websites
exclusive premieres, which Lowery called an effective and widespread
marketing strategy that he and countless other artists regularly employ.
"We're developing these new monopolies, but they don't necessarily abuse
the consumer," Lowery said in an interview. "They use their power to
abuse the producer."
Furthermore, on his blog, TheTrichordist.com,
Lowery posted an open letter to the Federal Trade Commission explaining
how the terms of Music Key amount to an antitrust concern. "Independent
artists have no way to take on anticompetitive behavior by Google in
the courts," he wrote. "Zoë Keating's experience is emblematic of all of
us and I implore you to listen to her voice." Impala, an indie label
trade organization, filed a complaint with the European Commission last
year similarly attacking Google's antitrust behavior.
He added in the letter, "I understand that Google is conducting a
whisper campaign with journalists in an attempt to discredit Zoë
Keating."
One of the journalists who reported on Keating's plight was Paul Resnikoff at DigitalMusicNews.com.
He republished her blogpost under the headline, "YouTube is Removing
Any Artist That Refuses to License its Subscription Service." A
representative from YouTube contacted him and demanded a retraction of
the headline, calling it "patently false." In a subsequent email
exchange, which Resnikoff posted online, the representative cited a
basic terms of service policy as proof that any user in agreement can
upload content, not contesting other terms dictated to Keating. (When I
contacted YouTube with several specific questions, I received the same
statement.) When reached by email, Resnikoff said that he didn't plan to
heed the retraction demand. "YouTube is exhibiting some pretty ugly
treatment toward artists," he wrote. "And understandably they don't want
it reported accurately."Following the exchange, Keating posted the
transcript of her phone exchange with YouTube's representative. Digital
Music News' headline remains, as does a very similar one published by Forbes, whose author was also contacted by YouTube, according to Resnikoff.
Resnikoff's original article appeared on January 23. An interview with
Keating on the matter, conducted by Glenn Peoples, who regularly reports
in detail about the digital music industry, appeared on Billboard.com on
January 28. It mentioned YouTube's denial while acknowledging that,
"meticulous note-keeping helps back up Keating's version of the story."
The next day, however, Billboard published another article condescending
to Keating as a "confused" "part-time pundit." The piece states that
YouTube had been in touch to "clarify" the contract proposed to Keating,
directly contradicting Keating's transcribed conversation and her
unsigned contract. According to explanations provided to Billboard, the
Music Key agreement wouldn't deny Keating's ability to window releases.
Additionally, her music wouldn't be available through Music Key without
consent, another claim that's contrary to Keating's conversation with
YouTube's representative.
A day after the lengthy interview, Billboard even appeared to imply
doubt about Keating's note-taking: "These responses go against
descriptions of the agreement presented to Keating (and transcribed by
her)," the article read, "and presumably present an update to the
contract's terms."
Keating wrote in an email, "I've been negotiating with [YouTube] for a
year, and at no point have any of the terms I've been concerned about
been flexible in any way. Then suddenly, after a little public sunshine,
a couple of the more onerous points have disappeared? [YouTube] has yet
to contact me about any of this."
She continued, "Now it's clear to everyone except a Wall Street banker
that there are elements of the contract that are fundamentally
unethical, and that [YouTube] wouldn't be able to insist on some of
these terms if they weren't hiding behind [non-disclosure agreements]."
YouTube appears to be working toward mending its public image while
ignoring Keating's contractual dispute. Despite the Google-backed
company's damage control campaign, Keating's bargaining power remains
compromised.
As Resnikoff wrote in an email, "The only groups that aren't getting
totally pushed around and exploited are the ones that bring a giant gun
to the negotiating table." He continued, "What happens to successful
indie artists that aren't signed? I think we're seeing exactly what is
happening to them, in real time."
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