Weeks ago, Apple and Spotify announced they had reached agreements with the music royalty analysis company Dubset. Dubset’s services include the ability for streaming providers to easily and legally allow users to upload music, even if those particular pieces of music contains copyrighted material. Dubset then analyzes the copyrighted material within the song using an automated scanning technique and distributes royalties based on prior royalty agreements. This specific service is known as MixSCAN, but it is only one of many similar automated products to design the same kind of search. While young artists worldwide have begun to celebrate the announcement of these new services, there are hidden drawbacks that the technology must first overcome.
The agreements come at a troubled time in music distribution. Today, an aspiring artist is essentially forced to turn to the Internet to build a fan base. With free, user-friendly systems like Soundcloud, Mixcloud, and Youtube, there is no shortage of places for artists to upload music.
Recently, however, these services have been failing the independent artist. Songs that contain samples of other works have been continuously removed from popular uploading services because of false automated copyright infringement claims. While the idea of automated copyright protection in this sense may sound appealing, these systems strip the user of the ability to defend their use of a sample; often, these uses are transformative or de minimus, but the songs are taken down before accounting for these affirmative defenses. The result is a market failure consisting of missed revenue for the creative artist.
As a result, music uploaded by aspiring artists has the potential to be automatically identified as infringing upon the rights of others when that is not truly the case. For artists with less financing behind their careers, redirected royalty payments for a song that was falsely flagged as infringement could be devastating.
In fact, Harvard Law professor and Creative Commons Co-Founder Lawrence Lessig went to court to battle this very issue in 2013. In 2010, Lessig gave a lecture at a Creative Commons conference, and the lecture included fan-made reboots of a music video by the band Phoenix along with a mash-up of two different songs. Lessig then posted his lecture on Youtube for educational purposes. Youtube’s Copyright systems, however, flagged the video as infringing. Professor Lessig, a master at his craft, was able to successfully defend himself and settled with the label under the terms that they re-evaluate their copyright takedown method. However, smaller artists and those not as familiar with Fair Use law would not have been so fortunate.
This issue seems especially pervasive in electronic music. Electronic Dance Music has seen a massive rise in popularity in recent years, with its success leading to a $6.9 billion worldwide market valuation. The artists that have driven the industry to this incredible spot are recognized for their stage displays of lavish and wild DJ mixes, but these artists originally earned their fans through years of dedication in front of a computer monitor. In order to produce an electronic music song, one must master the skills and techniques that are the basis for an endless sea of commercially available digital instruments and tools. Even learning to navigate one’s favorite Digital Audio Workstation can take years.
To induce more involvement in electronic music and to lower the barrier of entry, producers across the industry began to release what are now known as “Sample Packs.” These packs include sounds, rhythms, and chord progressions that an artist can copy-and-paste into their works completely royalty-free. When one purchases a sample pack, the sounds in the pack become theirs to work with and benefit from. One of the most popular distributors of these sample packs, Loopmasters, uses the following language in its Licensing Agreement: “The Licensee may use the Sounds in combination with other sounds in music productions (which include soundtracks of such as films, video productions, radio/TV programs or commercials, computer games and multimedia presentations, library music), public performances, and other reasonable musical purposes within musical compositions.”
When the use of a sample pack runs against a system like MixSCAN, there is a clear issue at hand. If the system chooses to attribute a bass line from a Loopmasters sample pack to a single artist, that artist begins to see a monetary benefit from other people’s use of the same sample. Needless to say, this is a daunting issue, and the distributors of the offending tools unfortunately have not addressed the problem.
While Apple and Spotify have not yet given specific details regarding how MixSCAN’s system will be implemented into their respective services, for the sake of creativity and proper royalty distribution, it is pivotal that the issue of sample ownership be solved. Without further precautions, the world of music and copyright will turn even more predatory.
Eric Zwilling is a J.D. candidate, 2017, at NYU School of Law.