Warner pulled its videos from YouTube about nine months ago due to a disagreement over money.  Since then, users have been deprived of official, high-quality clips featuring famous acts like Eric Clapton, the Doobie Brothers, Johnny Cash, Marilyn Manson, Sarah McLachlan, Metallica, Muse, Nine Inch Nails, Opeth, the Pogues, the Red Hot Chili Peppers, Frank Sinatra, and ZZ Top.

This put a serious dent in YouTube’s usefulness as a music player.  Also, as unofficial videos floated around, it seemed to increase the odds of YouTube finding itself on the receiving end of another lawsuit or two.

But Eliot Van Buskirk reported late yesterday, "YouTube is already encoding a batch of videos from Warner, in preparation to relaunch them on YouTube."

And with regards to the business-related details, he then continued, "Under terms of the ‘just-signed’ deal, Warner will be responsible for selling advertising against its own videos, so it will decide how much to charge for ads and find ad buyers on its own, rather than settling for whatever Google decides on.  In order to attract premium advertisers, Warner plans to create a separate channel within YouTube consisting only of ‘premium’ content."

Not long after von Lohmann called for YouTube users willing to fight YouTube’s and Time Warner’s “January massacre” of fair use principles, the Associated Press hurled copyright infringement claims at an LA street artist who created a popular Barack Obama campaign poster based on an AP photograph.

Whether a video or artistic rendition of a photograph is fair use is likely a question for the courts to decide. The problem is, the only ones with pockets deep enough to prove their fair use rights in court are caving into media giants to save court costs.

Google, a company with so much cash the SEC once warned they may be considered an investment fund, seems on the surface the perfect defender of fair use, especially when so much of its business model depends on fair use survival.

Instead, Google has picked its battles, hedged its bets, and has caved more often than not on the issue. Though known for spreading money around to various issues—spectrum usage, Net Neutrality, environmental causes, etc.—this seems like one battle the company seems unwilling to fight on all fronts.

The company won fair use arguments in the past, most famously against Perfect 10 regarding the indexing of image thumbnails. When Viacom slapped Google with a one billion dollar lawsuit over content appearing on YouTube, the company was obliged to defend itself and has yet to reach any agreement or settlement.

But when it came to linking to and indexing snippets of news stories, or usage of Warner Music tunes in YouTube video backgrounds, Google suddenly became a copyright enforcement media lapdog. Google settled with the AP by licensing AP content instead of sticking to its fair use indexing guns. Last month, YouTube used its Content ID system to go on a deletion spree on behalf of Warner.

The Content ID system is an automatic system matching up audio tracks to copyrighted music files. Hence why kids aren’t allowed to sing Christmas carols there anymore.

Fred von Lohmann

“Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners…,” writes von Lohmann. “But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a capella tribute, or set machinima to music.”

Von Lohmann fears it will just get worse, and that nothing will be considered fair use any more unless somebody takes these issues to court. That’s why he’s calling on YouTubers who had their videos taken down thanks to Warner Music to contact him. If well-heeled Google’s not going to defend its (and its users’) fair use rights who will?

Thanks to Google’s bending to the AP, the press organization is now emboldened to go after transformative art. The poster, for which creator Shepard Fairey made no money, is a clear instance of fair use, according to the executive director of the Fair Use Project at Stanford University, Anthony Falzone.

Though that assertion is disputed by other lawyers, another argues Fairey’s poster was used for political and civil discourse rather than for commercial usage. In fact, the popularity of the poster likely increased the value of the photo rather than diminished it. The irony now is that the very copyright legislation stiffening penalties Obama voted for during election season will doubtlessly be used to prosecute one his biggest fans.

No one would argue that companies needn’t be aggressive when protecting their intellectual property. The problem here is abuse and lack of willingness to make distinctions between blatant thievery for personal gain and artistic license—even free promotion.

Which is the bigger insult? That the AP and Warner Music don’t understand fair use, or that they just don’t care? One’s thing’s clear. Despite what should be Google’s vested interest in fair use, the company thinks its somebody else’s problem.
   
 

To borrow a little Internet vernacular, I LOL’ed when I heard about this. The music industry kindly requests that you save it from sliding farther into the tar pits and suffocating under its own weight. Because, you know, you don’t have unlimited music access online today.

Portfolio picked up a nice interview with Jim Griffin, Bronfman’s front man on selling the music access fee proposal to the world. The plan would create a pool of money to hand out to artists and copyright holders.

Especially the copyright holders, we’ll guess.

Griffin summed up the state of the world of music, not to mention the Herculean task before him, in noting “Today, it has become purely voluntary to pay for music. If I tell you to go listen to this band, you could pay, or you might not. It’s pretty much up to you. So the music business has become a big tip jar.”

Gee, the sue-em-all approach of the RIAA not working out for you, Mr. Bronfman? Still haven’t seen a replacement for the $5 billion a year the music industry lost over the past decade as people decided $18.99 for a CD with one or two good songs on it wasn’t that great a deal?

Griffin also held out the carrot that the monthly fee he’s proposed could be complemented with an ad-supported model, for people who would rather see ads than pay an extra $5 each month. Five bucks sounds awfully generous. Why not a dollar a month?

It could be much lower, in countries like China and India. Like a nickel per month. “Fair is whatever you agree upon,” he said.

Here’s the little tidbit Griffin and Bronfman won’t tell you: they are negotiating from a position of weakness. They want everyone to pay for music whether they actively seek music online, or don’t.

They need to do something in good faith first, to gain some goodwill from music fans. Put an end to the RIAA lawsuits against alleged filesharers; withdraw all current and pending complaints in the court system.

Griffin should have no problem going along with this. The industry stands to make a lot of money with Griffin’s plan, which should easily replace whatever gains they hope to make in settlements and judgments against music fans. The lawsuits aren’t stopping file sharing anyway.

The first agreement is with Egypt’s Orascom Telecom, which services countries including Algeria, Bangladesh, Italy, Pakistan, Tunisia and Egypt. Through this pact, Warner will be able to deliver mobile products such as ring tones and full-track downloads to these new areas.

Warner also announced that it would work with Norwegian telecommunications group Telenor to offer its content through nine of Telenor’s thirteen mobile operators throughout Norway, Sweden, Ukraine, Hungary and the other nations within its purview.

According to a Warner spokesman, these new agreements will enable Warner’s content to be delivered to nearly 60 million Orascom subscribers. Similarly, Telenor boasts a total mobile customer base of 105 million.

"(Orascom’s) scale, ambition and commitment to promoting legitimate, pan-regional mobile music services make them the ideal partner for us as we develop our presence in the Middle East and North Africa," Warner’s chairman and CEO, Edgar Bronfman Jr., said in a statement.

The label has also made similar agreements with mobile companies serving customers in Japan, South Korea, Russia, China and Latin America.

Warner has been an industry leader in forging new deals with content providers in order to make the label’s content available through a variety of different platforms. Back in October, the company was the first in the music realm to sign a content agreement with YouTube.

For a company so clearly focused on embracing new markets and technology, it’s mind-boggling to believe that Warner is still so blindingly adamant in its stance on other controversial topics, namely digital rights management.

Nonetheless, moves like this show that there are at least some forward-thinking people at the label. Hopefully, that mentality will begin to pervade the rest of its policies and pursuits.

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YouTube and WMG announced a groundbreaking partnership infusing, Warner says for the first time, user-generated and mainstream media content. The arrangement allows YouTubers to use Warner music in original videos they create and upload to the site.

The deal also includes access to Warner’s music video catalog, behind-the-scenes footage and other Warner programming. The two companies will share ad revenue generated from viewing.

Warner says the deal makes it “the first music company to harness YouTube’s…service to commercially distribute its music video catalogand the first global media company to broadly embrace the power and creativity of user-generated content.” (Ellipses added as magic BS meter tips too far to the right.)

But that doesn’t mean any use of Warner’s stuff is fair game. The company will authorize the use of its content through a new YouTube technology called a “content identification and royalty reporting system” to be in place by the end of the year.

In the best translation so far of press release-ese, Valleywag’s Nick Douglas calls this a magical “copyrighted-material-finding machine.” None of Warner’s content will be available until this magic machine is in operation.

YouTube co-founder and CEO, Chad Hurley, said something about milestones, shifting paradigms and a new media movement. Then he said:

“By providing a new distribution opportunity, we are paving the way for media companies to harness the vast financial potential of user-generated content on YouTube. We are thrilled that WMG had the vision to be the first music company, in partnership with its artists, to support the use of their content within user videos and to allow our community to interact with WMG music in new creative ways.”

Teaching the rookie YouTube CEO a thing or two about how to talk in a press release, WMG chairman and CEO Edgar Bronfman, Jr. said something about embracing innovation, consumer empowerment, two-way dialogues, and transforming entertainment and media forever. See? Isn’t that more exciting than shifting paradigms?

Then he said:

“As user-generated content becomes more prevalent, this kind of partnership will allow music fans to celebrate the music of their favorite artists, enable artists to reach consumers in new ways, and ensure that copyright holders and artists are fairly compensated.”

You provide the BS upfront, see, and then tell them what you’re talking about. Hurley had it backwards. Start with BS, end with the cool part. They won’t know what hit’em, but they’ll pretend to get it.

YouTube will offer the magic copyrighted-material-finding machine to other content creators, like TV networks and movie studios, in the future. The new architecture will offer those content creators:

Copyright identification tools to help identify their content on the site

Automated audio identification technology to locate their works within user videos on the site

The opportunity to authorize and monetize the use of their works within the user-generated content on the site

Reporting and tracking systems for royalties, etc

And a promise of more convoluted four-page press releases in a semi-foreign language.

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