TheKhanly's YouTube wares are counterfeit. The sound quality of this user's upload of Follow the Leader, the breakout album from nu-metal mavericks KoRn, is low. The artwork is grainy. No credits are given to Fred Durst, Ice Cube, and Cheech Marin, who all have guest spots on the record.
As you could imagine, this phenomenon has wide scope, with YouTube being a safe haven for countless albums and films. After a decade of uproar over piracy platforms, from Napster through Bit Torrent, why is it that YouTube and Google seem to get a free pass? Why has piracy on YouTube only grown more pervasive, with access to just about anything easier than ever? The answer begins with Google's mission: the quest to archive everything.
On the topic of scale, then, what is the largest black market you participate in on a regular basis? When you think 'black markets', do you think heroin, guns, and counterfeit purses sold on the street in Chinatown? We know there are illicit networks hidden in various degrees of sight—the Village Voice's Backpages for prostitution, the deep web for drugs. But these are the kinds of virtual marketplaces that the majority of the people we interact with day to day—the dermatologist, the mail carrier, the bank teller, the clerk at Target—would likely never fathom visiting.
In America, at least, black markets are reserved for some deviant fringe, not the folks with a reasonably average moral compass.
But let's say that dermatologist is a KoRn fan, perhaps one of 1.3 million people who, over the past two years, listened to TheKhanly's YouTube upload of Follow the Leader, a multi-platinum record. The dermatologist helped generate a large sum of money through her listening, none of which seems to have gone to KoRn or Sony, the parent company of Immortal, which released the record in 1998. That leaves L.A. Reid, Jonathan Davis, Munky, and Head with zero dollars, while TheKhanly acquires many.
The amount of money here realistically sits in the ballpark of $335 to $12,500, depending on how much AdSense is paying TheKhanly for that little ad that runs before the video, known as pre-roll. AdSense, which is owned by Google, does not publicly share rate information, though it's been reported that AdSense pays anywhere from $0.25 to $5 per thousand video views.
Last year, Businessweek reported figures ranging between $6.33 and $9.35 per 1,000 clicks for highly trafficked channels. This, of course, is per ad, and TheKhanly managed to squeeze 14 separate ads into his or her stream of Follow The Leader.
If TheKhanly truly made out like a bandit, netting $9.35 per ad per thousand views, and if each listener stuck out all 14 ads, TheKhanly made around $175,000 in two years.
No matter how much or little he or she generated, in all likelihood TheKhanly, who could not be reached for comment, has made far more money off Follow The Leader than a weed dealer does off an ounce of kush, or a sex worker off a common trick.
For that matter, uploading an album to a website requires arguably less savvy and effort than dealing drugs or prostituting. TheKhanly theoretically could be making bank off the least taxing form of counterfeiting possible, appealing to a guaranteed audience of dermatologists and schoolteachers and Target clerks who only need to type "korn leader" into a search box.
The ease of finding this material is facilitated by Google's omnipresence, bringing us back to Google's mission.
"Look at [Google's] name," Steven Levy, author of In The Plex: How Google Thinks, Works, and Shapes Our Lives, told me. "It's a really big number. Google all along has been about operating on a scale that was tough to imagine before the internet age."
While Google's early competitors like Altavista and Yahoo may have included little perks like collecting news or weather, Google has turned into an aggregator of everything from merchandise prices to metrics for linguistic trends.
"Their mission," Levy added, "is to collect all of the information. All of it."
Through one lens, this posits Google as the entity that will build this age's greatest archive, a contemporary Library of Alexandria that puts the original to shame in scope alone. YouTube is the library's vast, disorganized audio-visual wing, and parsing the vast esoterica to find the best can be a drag.
Network Awesome, a sort of online broadcast station, has developed into a collective effort to negotiate YouTube's awe-inspiring catalog, with any of its 250-plus contributors programming hours of content a day under a unified theme.
The founder of Network Awesome, Jason Forrest, considers the site's curatorial effort an antidote to "your Buzzfeeds and Mashables, [which] get paid to focus on this very lowbrow mainstream."
The easy access to David Lynch's television commercials, a compendium of videos from Chicago's drill scene, and a PBS documentary on Carl Jung, for example, validates Forrest's claim that the site uses similar mechanisms as those clickbait powerhouses to "supply a never-ending stream of inspirations." YouTube's complicity in this stream cannot be understated, as Network Awesome is, at the end of the day, a mechanism for comprehending the multitudes contained by the archive.
And the very need for an entity like Network Awesome says a great deal about how YouTube is handling its librarian duties. Searching for Beyonce's "Single Ladies" several years after it was a hit gives you the sense that YouTube is less like the Library of Congress or Alexandria and more like a hoarder's house where the plastic plates from the Labor Day barbecue are piled on top of the good china.
You will find the official "Single Ladies" music video, several "lyric videos" boasting audio of varying quality, smart phone videos of the song performed live, parodies, and acapella covers. Google and YouTube are perhaps not archiving entities with a mission to preserve, rather with one to hoard information simply because they can, suffering from what the late Jacques Derrida would call "archive fever."
In his lecture Archive Fever, the French theorist defines the syndrome as the reaction to the anxiety that some information will be left outside of an archive. Derrida calls this threat to the archive the "anarchive," derived from the words "anarchy" and "archive." The anxiety is simple: What isn't archived will be lost. Hence, archive fever develops, and Google seems to be infected.
At this point, Google's collection has extended outside of the virtual realm. In an under-publicized scandal last year, Google was using its street view camera cars to collect information from unsecured wifi networks. The repercussion? As we reported, Google was responsible for paying just $7 million, despite violating the privacy of citizens in 38 states.
YouTube's library-like status is great for, say, an up-and-coming metal band whose video views may translate directly to better concert attendance. But YouTube's archive fever garners plenty of backlash.
Pitchfork writer and perennial advocate of underground music Marc Masters told me that the notion of "having your music listened to at the same place where people stream fail videos and 'I like turtles', it really makes music seem like trash, just junk you click on and forget about."
This viewpoint might ring a bit extreme—especially if you're in the camp that believes the ability to jump from a remix of a girl getting hit with a shovel to a Laurie Spiegel composition is somehow kind of beautiful—it does raise the question of worth as human creative energy morphs into, simply, a piece of content.
This dilemma is at the heart of the seven-year court battle between YouTube and Viacom. In 2007, Viacom served over 100,000 takedown notices for proprietary content and sued to the tune of $1 billion. Three years into the debacle, a federal judge ruled that YouTube was protected by section 512 of the Digital Millennium Copyright Act, or DMCA, more or less stating that YouTube is not complicit in the copyright violation perpetrated by users who upload to its servers so long as it was not aware of the action in advance and had no intention of profiting off of it.
Daliah Saper, a Chicago-based intellectual property attorney, told me that any company hosting content uploaded by a third party is protected under DMCA as long as it has a registration agent to field DMCA take down notices. YouTube "is only the platform allowing others to host content," Saper said. [Copyright holders] would contact YouTube and say 'there is infringing content posted at this URL' and they would take it down."
Whether that seems fair or not, it's worth keeping in mind that the DMCA has not been altered in a substantial way since it was drafted by Congress in 1998, the same year KoRn dropped Follow the Leader. It is legislation from the prehistory of the internet as we know it today. Congress certainly did not have in mind users like TheKhanly earning over a million hits for a pirated record. And in hindsight, Congress could likely could not have foreseen that a company like Google would be so, well, complicit in this act.
Speaking of complicity, would YouTube permit TheKhanly to join its lucrative Partner Program, earning him $2.50 per thousand hits, simply for bringing traffic to the site? Likely not. The "Which videos are NOT eligible" section of the company's guide to monetizing videos states that copyrighted music is off limits. Thing is, just under the bullet points on ineligibility for monetization sits a sentence in bold face: "If your video is not eligible, it may be removed from YouTube."
"May" is the operative word here. It explains exactly how theoretically copyright-protected content stays up on YouTube for so long in such quantities. In one sense, YouTube seems to be proving the pragmatic futility of this link-specific take down notice system by hosting so much content. And in this sense, YouTube's behavior seems abusive of copyright law, using its financial and legal muscle to gain leverage when possible.
Evidence of that leverage comes with the business that YouTube and Viacom conducted while their lawsuit was in progress. As Recode reported when the case was settled last March, YouTube developed its ContentID system to help Viacom and similar companies keep track of its copyright-protected content. Recode noted that ContentID led the Viacom-owned movie studio Paramount to strike a rental deal with YouTube in 2012.
When the lawsuit was settled this year, no money changed hands. YouTube won over Viacom not through monetary reimbursement or content removal, but simply through offering the ability to keep track of questionable material.
"Getting off easy" understates what YouTube got away with. YouTube gamed both the DMCA and a rapidly evolving online market to turn a billion-dollar lawsuit into a business deal. The Paramount deal is classic "if you can't beat 'em, join 'em." YouTube flexes its ContentID system to make the "join 'em" half of that conditional vaguely lucrative by lending copyright holders the option to run ads over violating content.
When I spoke with a YouTube representative on the dynamics of this system and the nature of the business partnerships forged within the ContentID system, he asked not to go on the record. For an official statement, I was directed to a page titled "How ContentID Works".
So yes, YouTube offers conciliatory means for compensation from pirated media. And no, YouTube does not facilitate other forms of piracy, such as giving users the tools to rip content and keep it on their hard drives. (RealPlayer does.) Instead, YouTube has positioned itself as a haven for bootlegged versions of media by offering intellectual property owners the ContentID olive branch.
How, then, does Vevo, a company partly funded by YouTube, factor into this equation?
Vevo, a joint venture that counts Universal and Sony among its owners, is essentially a music channel designed to carry those labels' music to YouTube, whose owner, Google, also has a stake in Vevo. Thanks to that little "Vevo" symbol on all of the content it controls, the company, which opted not to be interviewed for this article, is the most visible of a swath of digital distribution companies which ensure that its clients have control over uploaded content.
Because it has a direct interest in Vevo, it's natural that YouTube takes copyright protections for the music Vevo distributes seriously. But for other artists, it can be more hit or miss. You can have the media you own taken down—perhaps sabotaging exposure of the work—or agree to run some ads over the content at a rate set by AdSense.
But even the muscle you contract from YouTube can backfire. Basically, YouTube protects your content by logging it into a database in which that music and video is analyzed by a set of algorithms. If those algorithms detect even a snippet of that music or video in a new upload, that upload gets flagged.
For longer than he has been running Network Awesome, Jason Forrest has been a purveyor of hardcore techno, as both a musician and a record label head. Forrest claims that his music spread mainly through the peer-to-peer network Soulseek, allowing him to eke out a living as a touring DJ for about a decade. This would explain why Forrest is so sensitive to the plight of more obscure artists trying to get their music heard.
Recently, Network Awesome was looking to premiere a video by Canadian DJ duo Jokers of the Scene, but when the act's label, Throne of Blood, tried to upload it, they were served a notice of copyright violation.
"Because they had digital distribution deals," Forrest told me, "all embeds [of Jokers of the Scene's music] were automatically blocked. So the marketing behind the label blocked us from promoting the band."
The label's own promotional efforts, in other words, were refused in a catch-all effort to placate the gatekeepers with whom YouTube has a good, working relationship. This isn't a problem for, say, French DJ David Guetta, who would likely never create and post his own homemade music video. But the vast majority of artists using YouTube as a distribution platform are not backed by massive, corporatized music labels who have powerful marketing arms.
How is it that it's harder for a label trying to spread word of its music than it is for TheKhanly to upload a low-quality version of a KoRn album? You will be hard pressed to find people involved in the less profitable sectors of the music world (read: most sectors of the music world) who think that sharing music for free in some capacity is a bad idea.
Bandcamp allows the ability to stream an album before you purchase it. And the recent viral success of avant dance producer SOPHIE shows just how powerful Soundcloud has become in breaking new electronic musicians. But YouTube provides little of the direct monetization opportunity that Bandcamp does and a scant selection of the type of social media mechanisms that make Soundcloud and Spotify such useful ways to discover new sounds.
Is YouTube, for lack of a better term, unconscionably fucked? No. YouTube is distinguished by being one of the few truly democratic outlets of mass media, allowing for videos of anything from anywhere to be shared globally.
But the fact of the matter is that this is a stale conversation that focuses on YouTube's boon and not its burden. As evidenced by the Viacom debacle, YouTube is a powerful company which can afford to make its own rules. In fact, the only set of rules against which it can truly be held accountable, the DMCA, is 16 years old with no substantive amendments.
As a business, YouTube is perhaps the grand archive of the information age, but for as long as we continue to ignore its status as a black market, or more appropriately, a free market system quickly growing out of hand, we ignore the fact that Google desires to exploit its lack of accountability to a much greater extent than hoarding all of the world's music and film.
Correction 10/23: This article originally stated that Sony had not struck a deal with an official YouTube partner, which is incorrect; Sony Music Entertainment is a partner in Vevo. We've also clarified the relationship between Vevo, SME, UMG, and Google. Motherboard regrets the errors.