Are YouTube gagging artists in the copyright debate?

February 2018



Hot on the heels of a report by Bloomberg that YouTube had asked musicians to agree not to disparage the streaming-video service in exchange for promotional support as a way to silencing criticism by artists, the Content Creators Coalition (C3) has urged Congress to investigate the so called  ‘non-disparagement agreements’. YouTube meanwhile is trying to stem the damage, and has played down reports that it includes non-disparagement agreements in contracts with some artists which would prevent those musicians from criticising the Google platform – although the company admits that a small number of current agreements tied to original content and/or promotional work may include “general language around conduct”.

US artist-led lobbying group C3 has called on the Judiciary Committees to investigate the non-disparagement clauses in partnership agreements. In its report, Bloomberg conceded that such terms “are common in business”, but noted that it seemed only YouTube had extended the the music streaming marketplace.

In a letter to the chairs of the Congressional Judiciary Committees in both the Senate and the House Of Representatives, C3 argues these clauses are “clearly aimed at thwarting the Congressional review of the Digital Millennium Copyright Act’s [provisions for] ‘safe harbor’ as well as the public debate about the issue” against the backdrop of the The US Copyright Office’s review of US copyright law and safe harbor. The C3 letter goes on: “An unprecedented groundswell of artists have called out Google for gaming outdated laws to facilitate YouTube’s profiteering from rampant music piracy on its service. In filings to the Copyright Office, a cross section of music creators argue that the DMCA’s safe harbours are actually ‘safe havens’ that allow platform monopolies to use the ubiquity of unlicensed free music on their services as a cudgel in negotiations to drive down their own licensing costs”.

The letter adds “We are deeply troubled by recent reports indicating that ‘YouTube has asked musicians to agree not to disparage the streaming-video service in exchange for promotional support, according to people familiar with the matter, a way to quell persistent criticism by artists’. Simply put, Google has abused its monopoly power to give artists pennies on the dollar and appears to be further abusing that power to buy the silence of artists who might otherwise speak out and draw public scrutiny to these practices” and concludes: “With jurisdiction over copyright and antitrust laws, the judiciary committees are uniquely situated to get to the bottom of these apparent abuses. We ask that you do so swiftly”.

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