The conventional synchronization (or “sync”) licensing model that exists on internet platforms is broken. Unlike public performance rights, which are licensed through performance rights organizations (“PROs”), sync licenses must be negotiated between individual licensees and copyright holders. This process fails on social media platforms, like TikTok, where countless individual users infringe by pairing copyrighted audio with their original videos. Although TikTok has negotiated short term license agreements with major labels and other distributors in the music industry, this solution doesn’t address the core problem with individual sync licenses in an internet era—the lack of accountability for copyright infringing social media users and the music industry’s failure to provide a practical means to license derivative works online.

This article will discuss the policy reasons behind the formation of PROs, the current infringement crisis on social media and the ineffectiveness of the Digital Millennium Copyright Act’s (“DMCA”) takedown provisions in combatting widespread infringement. It will also discuss why a shift to liability rules would fail to address many sync issues and the benefits of social media platforms operating under blanket sync licenses.  

Music Copyright and Public Performance Licenses

Every recorded song has two separate copyrights: a composition copyright, which covers the music and lyrics, and a sound recording copyright, which covers the actual sound recording.[i] These two copyrights are frequently owned by multiple people. Under the Copyright Act of 1976, copyright owners have the exclusive right to (1) reproduce the copyrighted work, (2) prepare a derivative work, (3) distribute copies of the work, (4) display the work, (5) perform the work publicly, and (6) perform a copyrighted sound recording publicly by means of digital transmission.[ii] Copyright owners can license these rights to third parties — the nature of the license depends on how the licensee plans to use the song.

One of the most common licenses is a public performance license, which grants the right to perform a song in a public place such as a restaurant, shopping mall or music venue.[iii] Unless the song is broadcast in an interactive, digital medium, a performance license only requires consent from the composition copyright holder.[iv]

Performing Rights Organizations Versus Sync Licenses

Although, in theory, copyright holders possess the exclusive right of public performance, in practice, isolated owners have been unable to efficiently exploit this monopoly in the free market.[v] It would be incredibly difficult for every store, bar or radio station playing music to individually negotiate with copyright holders to obtain licenses for every song performed. Conversely, it would be impossible for copyright holders to litigate every infringement. The high transaction cost to obtain licenses coupled with copyright holders’ inability to exclude free riders from playing their music created a market failure. 

This market failure, in turn, led to the formation of PROs. When Victor Herbert, an American composer, heard his song played in a New York restaurant, he became frustrated by the fact that he received no royalties from the performance.[vi] In response, Herbert, along with several other colleagues, formed the American Society of Composers, Authors, and Publishers (“ASCAP”) to collectively enforce the rights of songwriters and publishers. ASCAP has had success litigating copyright infringement where lone composers lacked the resources to do so.[vii] For instance, when Herbert and ASCAP brought suit against Shanley’s Restaurant for playing Herbert’s songs without permission in Herbert v. Shanley Company, the Supreme Court held in a landmark decision that restaurants must obtain licenses for music performed there.[viii] The Court justified extending the definition of a public performance to include restaurants where music is played for the enjoyment of customers because the “purpose of employing [the music] is profit.”[ix]  

Today, PROs sell blanket licenses that cover the entirety of their members’ catalogs, cutting through the transactional backlog that would occur if every potential user was required to negotiate with each copyright holder before performing a song publicly.[x] PROs have been enormously successful; in 2019, ASCAP reported $1.264 billion in revenue and distributed $1.184 billion to members.[xi] Broadcaster Music Inc. (“BMI”), another prominent PRO in the U.S., brought in $1.283 billion in revenue in 2019, distributing $1.196 billion to its members.[xii] Each PRO has its own methodology for tracking song performances depending on the media category in which the song is performed,[xiii] but how PROs specifically calculate distributions to each member is unknown[xiv].

When audio is paired with visual images, a synchronization (“sync”) license is required.[xv] Sync licenses, unlike public performance licenses, need consent from both the composition and sound recording copyright holders.[xvi] At present, there are no collective rights organizations for sync licenses; instead, these licenses are individually negotiated between potential licensees and copyright owners. The cost for a sync license varies greatly depending on several factors, including the media on which the sync will occur, how long the sync will run for, where the sync will air, and the negotiating leverage of the copyright holder.[xvii]

Internet Infringement

A defining characteristic of intellectual property is that it is not self-enforcing. This problem has been exacerbated by the internet, which has made it exponentially easier to copy and distribute protected works. Beyond wholesale copying, a substantial amount of infringing content on the internet is unauthorized derivative works.[xviii]

 Lawsuits against individual internet infringers are often impracticable. Individual users tend to be judgment proof because they lack the funds to make it financially worthwhile to litigate. Additionally, rights holders may avoid going after individuals because they are afraid of negative press. The blowback Metallica received after requesting NAPSTER ban users for illegally downloading the band’s albums has served as a cautionary tale for many artists.[xix] Finally, the vast amount of content on the internet makes it impossible for copyright owners to find and litigate each infringing act.

DMCA Takedown Provisions

Congress’s solution to widespread infringement on internet platforms was to establish limited safe harbor provisions through the DMCA. Section 512 of the DMCA limits the liability of internet service providers for the infringing content posted by third parties under certain circumstances.[xx]

To escape liability for copyright infringement on its platform, a service provider must have no actual knowledge of the infringing material or activity, or be aware of facts or circumstances that would make infringing activity apparent.[xxi] Additionally, if the service provider has the “right and ability to control” the activity, it must not receive a direct financial benefit from the infringing content. Finally, the service provider must remove or disable access to infringing content upon receiving notice of infringement.[xxii] 

The DMCA notice and takedown system is a multi-step process. When a copyright owner finds content they believe is infringing upon his or her work, he or she can send a takedown notice to the service provider hosting the content.[xxiii] Then, ideally, the service provider quickly removes or disables access to the content.[xxiv] The person who posted the content can challenge the takedown by sending a counter-notice to the service provider, including a “statement under penalty of perjury” that the content poster believes the material was removed or disabled due to “mistake or misidentification.”[xxv] The service provider must send the copyright owner a copy of the counter-notice along with notice that the content will be restored in 10 business days.[xxvi] If the copyright owner does not file an action in court within 10 to 14 business days, the provider must restore the allegedly infringing content.[xxvii]

In practice, DMCA takedown notices result in both over and underinclusive prevention. To send a takedown notice, copyright holders only need a good faith belief that the content at issue is infringing, which “allows copyright holders to take advantage of the lack of bright-line rules” in fair use.[xxviii] Accordingly, copyright holders tend to ignore probable fair use exceptions when issuing notices. Content posters, who are typically unsophisticated parties with little to no legal training, may be frightened by the threat of litigation and choose not to counter notify.[xxix]

Additionally, the affirmative notice requirement places a heavy burden on copyright owners, who must notify platforms of each act of infringement. This creates huge transactional costs for copyright owners looking to protect their work against unauthorized derivatives—especially for artists outside the major labels—due to the sheer amount of content on the internet.[xxx]

Conversely, the DMCA places very little burden on internet service providers to prevent infringement on their platforms. Service providers are not required to monitor their sites for infringing content or seek out “facts indicating infringing activity.”[xxxi] As such, it is incredibly easy for platforms to avoid actual knowledge or awareness of facts that would make infringing activity apparent.

Case law interpreting the DMCA safe harbor provisions has further alleviated service provider liability by requiring actual knowledge or awareness of specific instances of infringement.[xxxii] In 2012, in Viacom International v. YouTube, the Second Circuit held that a survey conducted by YouTube employees that estimated 75-80% of all streams on YouTube contained copyrighted material was insufficient to show YouTube knew of facts or circumstances that would indicate any particular infringement. The Second Circuit did remand on the basis of other evidence, including a memorandum presented to the Board of Directors by YouTube co-founder Jawed Karim, stating that “blatantly illegal” clips of Viacom shows could be found on YouTube.[xxxiii] On remand, the District Court for the Southern District of New York held that the memorandum was insufficient to demonstrate that YouTube possessed actual knowledge of the clips at issue because it did not state the exact clips Karim had viewed.[xxxiv]

Unsurprisingly, the DMCA safe harbor provisions have become a lightning rod for public discontent with intellectual property enforcement online and there have been increasingly widespread calls for legislative reform.[xxxv] In response, the Copyright Office conducted a multi-year study on Section 512, which culminated in a report recommending Congress “fine-tune” sections of the DMCA to achieve a more equal distribution of responsibility between content owners and platforms.[xxxvi] In turn, the Senate Judiciary Subcommittee on Intellectual Property has spent the last year holding hearings on DMCA reform[xxxvii] and, in December 2020, Senator Thom Tillis released a discussion draft of the Digital Copyright Act of 2021, a bill intended to address the perceived failings of Section 512.[xxxviii]

Enforcement Breakdowns on Individual Platforms

YouTube

Content creators on YouTube are prolific, uploading an estimated 720,000 hours of video each day. [xxxix] In 2020, YouTube had two billion monthly active users.[xl] That same year, YouTube brought in $15 billion in advertising revenue, 10 percent of its parent company Google’s total revenue for the year.[xli]

From its start, YouTube has been saturated with copyrighted works, many of which are unlicensed. In 2005, YouTube co-founder Steve Chen wrote in an e-mail to other founders that removing “potential copyright infringements” would reduce site traffic to 20 percent of what it was at the time.[xlii] In 2006, Maryrose Dunton, then YouTube’s lead Product Manager, informed Chen that 70 percent of the “most viewed/most discussed/top favorites/top rated” videos on YouTube included copyrighted material.[xliii] When Google purchased YouTube in 2006, Google’s financial advisors notified the board that approximately 60 percent of YouTube’s content was copyrighted and only 10 percent of that content was adequately licensed.[xliv]

To manage content and identify infringing videos on the site, YouTube currently uses an automated system called Content ID.[xlv] Videos uploaded on YouTube are scanned against the Content ID database. If the video appears to infringe a work in the database, the copyright owner is notified and given the chance to block the infringing video or monetize the video for his or her benefit before the video is published.[xlvi] If a video is monetized, YouTube takes 45 percent of the ad revenue, leaving 55 percent for the copyright owner.[xlvii] Access to Content ID is limited to copyright owners that own “exclusive rights to a substantial body of original material that is frequently uploaded by the YouTube creator community.”[xlviii] As such, only five percent of applicants for Content ID access are approved.[xlix]

 Copyright holders who do not fit these criteria have a difficult time policing infringement of their work. In a recent class action filing, a group of independent artists, including Grammy award-winner Maria Schneider,[l] alleged that YouTube has denied them access to Content ID, forcing them to manually search for videos that infringe on the artists’ copyright.[li] According to the filing, smaller copyright owners cannot screen for infringing works until after they have been made available to the general public and, once a work has been identified, it takes weeks for YouTube to suspend or remove the video.[lii]

 TikTok

TikTok is a relatively new social media platform. Owned by Chinese company Bytedance, TikTok launched worldwide in 2018.[liii] TikTok has enjoyed popularity among young demographics and has become a crucial platform for fan growth in the music industry.[liv] A popular pastime on TikTok is creating memes and viral dances paired with a specific music sound clip.[lv] It typically starts with a single user sharing a video on the app, after which other users can take that same audio clip and pair it with their own video.[lvi]

Dance challenges are particularly popular, resulting in the creation of millions of user videos. For instance, the “Renegade Dance Challenge” prompted the creation of 33 million fan videos, each using K CAMP’s song “Lottery.”[lvii] After the challenge went viral, “Lottery” reached 86 million streams on Spotify.[lviii] Songs that achieved similarly unexpected viral fame through the app, such as “The Box” by Roddy Ricch and “Say So” by Doja Cat,  are known as “TikTok hits.”[lix]

But while it has the power to elevate songs on the charts, TikTok is also a hotbed for copyright infringement. According to experienced copyright infringement litigator, Richard Busch, “Songwriters, music publishers and owners of recorded music are having their music basically stolen with no incentive for the TikToks of the world to do anything about it.”[lx] In April 2020, the National Music Publishers Association ("NMPA”) estimated that 50 percent of the music in TikTok videos was unlicensed and warned that an infringement lawsuit was “a likely future step.” [lxi]

Though the threat of litigation was possibly a negotiation tactic, as the NMPA subsequently signed a licensing agreement with TikTok,[lxii] other major players in the music industry have bared their teeth as well.[lxiii] Universal Music Group Publishing (“Universal Publishing”)— which represents Billie Eilish and Taylor Swift, among others— has also threatened legal action against TikTok if negotiations between them continue to stall.[lxiv] As an NMPA member, Universal Publishing has the ability to opt-in to the NMPA deal along with other NMPA members, but it is unclear if it has adopted the NMPA deal or is still negotiating a separate licensing agreement with TikTok.[lxv]

As of October 2020, TikTok has acquired short-term licensing deals with Sony Music, Universal Music Group and Warner Music, along with Sony and Warner’s publishing arms. [lxvi] It’s unknown how long these license deals will last, but they are reportedly significantly shorter than the typical 18 or 24-month long license agreements.[lxvii] Many of TikTok’s licensing agreements with smaller, indie groups like Kobalt, BMG, eOne and Secretly Publishing were passed to TikTok from Musical.ly, a social media application acquired by ByteDance, in 2017.[lxviii] Thus, it remains to be seen whether TikTok will be able to re-negotiate these licenses when they expire.

Even as TikTok hammers out deals with major players in the industry, the uneven bargaining position between the platform and lesser-known independent artists puts artists without representation at a disadvantage. This disadvantage is especially problematic as independent artists are the fastest-growing segment of global recorded music. In 2019, non-label affiliated artists brought in over $1.6 billion in revenue.[lxix] In 2020, that number is estimated to reach $2 billion.[lxx] These artists directly upload their work to Digital Service Providers (“DSPs”) without a major or independent label serving as an intermediary.[lxxi]  

While many independent artists receive some label-like services from companies like AWAL, Empire and Believe, other independent artists self-release.[lxxii] The growth of independent artist revenue is tied to the rise of DSPs and video/social platforms, like TikTok, which have allowed indie artists to reach potential fans without any assistance from major or independent labels.[lxxiii] As such, TikTok’s reputation as a hit-maker means independent artists may accept little to no compensation in return for a chance at exposure. For up-and-coming artists like iLOVEFRiDAY, an independent duo based out of Atlanta, “the relationship with TikTok is more important than asking them to pay.”[lxxiv] iLOVEFRiDAY agreed to continue to allow TikTok free use of their diss track “Mia Khalifa” after the song was uploaded by a TikTok user and subsequently featured in over four million videos on the app, in exchange for promotion of iLOVEFRiDAY’s future releases.[lxxv]

Systemic Infringement on the Internet

The market issues exemplified by YouTube and TikTok are a symptom of the way users operate on the internet at large. Content creators on social media tend to have little knowledge of licensing requirements or do not care enough to clear their derivative works with copyright holders. The incredible amount of video content on YouTube makes it impossible for copyright holders without access to Content ID to monetize or remove infringing videos.

 Similarly, although TikTok has recently limited users’ ability to upload audio directly to the app, it is still possible to circumvent this by using third-party apps.[lxxvi] While TikTok has managed to sign significant licensing deals with major organizations in 2020, each deal had to be individually negotiated. These negotiations presumably racked up extensive transaction costs and many licensing agreements were reached years after TikTok blew up on the global scene. Accordingly, even if an agreement gave copyright owners retroactive compensation for the time their unlicensed music was used, they would likely have waited many years to receive payment for the use of their work.

The safe harbor provisions limiting platform liability are tilted heavily in favor of service providers at the expense of users and content owners alike. This has resulted in an online environment in which service providers are not incentivized to weed out infringement but, instead, benefit significantly from infringing works. Such provisions are currently under legislative scrutiny and it’s likely that the power balance between service providers and copyright holders will shift in the next few years.[lxxvii] If changes to the DMCA succeed in placing a greater onus on platforms to prevent infringing content, tech companies will have strong incentivizes to license the use of copyrighted works on their sites directly from copyright holders.  

However, even if the DMCA remains unchanged, there are still clear incentives for both platforms and copyright owners to reach mutual agreements that allow users to post derivative works on social media. Like restaurants that play music to attract customers, social media platforms rely on user-generated content to attract more users and, with them, ad revenue.[lxxviii] Platforms like YouTube and TikTok need popular content to attract and retain their large user bases. The most popular content on sites tends to be infringing works, and tech companies know this; in internal emails, YouTube founder Chen argued strongly against removing copyright infringing videos because “80% of user traffic depended on pirated videos.”[lxxix] Licensing that content directly from rights holders allows them to avoid litigation and keep otherwise infringing content up on the site.

Licensing works directly with platforms to open up new revenue streams, for rights holders, and to eliminate the insurmountable transaction costs required to license with unsophisticated social media users. However, even if platforms and content owners negotiate directly, the fragmentation of the creative industry and growing prevalence of smaller rights holders puts many copyright owners on uneven footing with large, sophisticated tech corporations.

Blanket Licenses for Sync Works on Social Media

Instead of playing catch-up via post-infringement licensing deals that come with high transaction costs and cut out independent artists, the industry should consider creating a Collective Rights Organization (“CRO”) that deals exclusively with sync licensing for social media platforms, i.e. a Sync Rights Organization (“SRO”).

An SRO would give copyright holders collective bargaining power outside of for-profit organizations and simplify the sync licensing process in an area where the conventional model fails. Though liability rules also have the potential to lessen transactional costs, CROs are better suited to market changes and provide copyright holders with the ability to opt out of collective bargaining.

While copyright holders with large catalogs, like Sony or Universal, have an easier time negotiating with tech companies, independent songwriters and artists lack the collective bargaining power to reach equivalent deals for use of their music. Much of the power that ASCAP and BMI possess comes from their extensive catalogs. Because public performance licensees can negotiate directly with ASCAP and BMI instead of the many separate parties who own the music, transaction costs are kept low. Overall, ASCAP and BMI are very efficient; BMI’s operating expense ratio in 2019 was 6.7 percent[lxxx] and ASCAP’s was about nine percent[lxxxi]. Since PROs also monitor what music is being played for large amounts of content, they spend less time and effort tracking the music than each songwriter would if they spent time tracking their own songs.

 An SRO would have these same advantages. As a representative of a large catalog, their negotiating power would be stronger than that of individual rights holders. Dealing with one or two SROs instead of many individuals would streamline negotiations, lowering transaction costs and lessening the time it would take to license significant portions of music. Further, an SRO likely meets the requirements for YouTube’s Content ID and could use the system to track usage of its individual member’s content.

Many of the issues that led to the formation of ASCAP and other PROs now exist on social media platforms. Just as early music copyright holders found it impossible to litigate infringement against the vast number of venues playing their music, the vast amount of content on the internet has made individual negotiation or litigation over derivative works impracticable. Meanwhile, social media platforms benefit from the content users post and are protected from liability by the DMCA safe harbor provisions. Although the current interpretation of the DMCA has given platforms extensive liability protection, it’s possible that an SRO would have greater success litigating infringements or changing precedent in favor of rights holders than its individual members, just as PROs had greater success litigating infringement than their members did on their own.

Why Not a Liability Rule?

There has been a push in intellectual property for a shift from property rules to liability rules.[lxxxii] Unlike property rules, which give an exclusive right to the property holder, liability rules prescribe the cost for another to appropriate the property.[lxxxiii] A compulsory license is a type of liability rule.[lxxxiv] In music, the most prevalent compulsory license is the mechanical license.[lxxxv] Established by the 1909 Copyright Revision Act, mechanical licenses give anyone the right to reproduce and distribute a musical composition without the express consent of the composition copyright holder in exchange for a small fee.[lxxxvi]

Although mechanical licenses cut down on transaction costs by eliminating the need to obtain permission from the rights holder, there are serious drawbacks to them as well. Compulsory licenses are enacted by the legislature, which is susceptible to lobbying efforts, unlikely to have the same industry understanding as a private organization,[lxxxvii] and unable to automatically adjust to market change.[lxxxviii] Consequently, mechanical licenses have steadily lost value. When the mechanical license was first established, it cost two cents to reproduce and distribute a song.[lxxxix] The current cost is 9.1¢, failing to maintain its value against inflation.[xc] From 1976-2009, inflation-adjusted mechanicals dropped in value by 14 percent.[xci]

 Additionally, compulsory licensing would not solve the problem of infringement because copyright holders would still have to separately litigate against content owners that fail to pay mechanical licenses. In fact, the Music Modernization Act has tried to solve many of the issues surrounding mechanical licenses by creating an organization charged with providing blanket licenses to digital music providers and collecting revenue—effectively a CRO.[xcii]

 In contrast to compulsory licenses, CROs are run by industry professionals who have an understanding of the value represented in their catalog and other major players in the industry.[xciii] CROs also have the ability to change their pricing structure at the end of licensing agreements to more accurately represent their catalog’s market worth.[xciv] Finally, individual copyright holders have the ability to join or leave CROs, which gives them greater control over how their work is used. If a copyright holder believes they could negotiate better deals on their own or wants to retain the ability to deny platforms a license to use their work, they can opt-out of a CRO. This option is not available under a compulsory license regime, in which copyright holders have no ability to restrict licensing of their works.

Conclusion

As service providers continue to grow in stature and new social media platforms emerge, the music industry risks increasingly widespread infringement by sticking to the isolationist philosophy of every man for himself. Banding together under an SRO with the authority to negotiate blanket sync licenses for content creators on social media platforms will simplify negotiations, save time and money for copyright holders and tech companies alike, and allow for market changes that are unavailable under a compulsory license regime. An SRO would also enable more efficient copyright enforcement and song tracking while giving independent artists the opportunity to benefit from social media without foregoing their right to get paid. Ultimately, if the music industry wants to streamline licensing revenue online and cut down on infringing content, their best bet is to band together.

End Notes

[i] Buck McKinney, Creating the Soundtrack of Our Lives: A Practical Overview of Music Licensing, 48 Tex. J. Bus. L. 1, 3 (2020).

[ii] 17 U.S.C. § 106.

[iii] McKinney, supra note 1, at 5.

[iv] Types of Copyright, BMI, https://www.bmi.com/licensing/entry/types_of_copyrights (last visited Oct. 13, 2020).

[v] Id.

[vi] Al Kohn & Bob Kohn, Kohn on Music Licensing 8 (4th ed. 2009).

[vii] Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Cal. L. Rev. 1293 (1996).

[viii] Herbert v. Shanley, 242 U.S. 591 (1917).

[ix] Id. at 595.

[x] McKinney, supra note 1, at 5.

[xi] ASCAP Reports Record-Breaking 2019 Revenues and Distributions, ASCAP (May 1, 2020), https://www.ascap.com/press/2020/05/05-01-financials-release.

[xii] BMI Sets Revenue Records with $1.283 Billion, BMI (Sep. 9, 2019), https://www.bmi.com/news/entry/bmi-sets-revenue-records-with-1.283-billion.

[xiii] Heather McDonald, How BMI and ASCAP Track Your Song Usage in the Media, The Balance Careers (Nov. 20, 2019), https://www.thebalancecareers.com/how-performance-rights-royalties-are-tracked-2460922.

[xiv] Max Foreman, Understanding Performance Royalties, Pro Audio Files (Apr. 15, 2018), https://theproaudiofiles.com/performance-rights/.

[xv] Mark S. Lee, Entertainment and Intellectual Property Law §7:47 (2020 ed. 2020).

[xvi] Nicholas Thomas DeLisa, You(Tube), Me, and Content Id Paving the Way for Compulsory Synchronization Licensing on User-Generated Content Platforms, 81 Brook. L. Rev. 1275, 1277 (2016).

[xvii] SYNC LICENSING 101, Tunecore, https://www.tunecore.com/guides/sync-licensing-101 (last visited Oct. 13, 2020).

[xviii] Frank Guzman, The Tension Between Derivative Works Online Protected by Fair Use and the Takedown Provisions of the Online Copyright Infringement Liability Limitation Act, 13 Nw. J. Tech. & Intell. Prop. 181, 182 (2015).

[xix] Eliot Van Buskirk, Fans Rip Metallica a New One, Wired (May 29. 2008, 10:38 AM), https://www.wired.com/2008/05/will-metallica/.

[xx] 17 U.S.C. § 512(c).

[xxi] 17 U.S.C. § 512(c)(1)(A).

[xxii] 17 U.S.C. § 512(d)(3).

[xxiii] Guzman, supra note 20, at 184-85.

[xxiv] Id. at 185.

[xxv] Id.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id. at 188.

[xxix] Id. at 189.

[xxx] Jeffrey Cobia, The Digital Millennium Copyright Act Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process, 10 Minn. J.L. Sci. & Tech. 387, 397 (2009).

[xxxi] 17 U.S.C. § 512(m)(1).

[xxxii] Viacom Int’l v. YouTube, 676 F.3d 19, 31 (2d Cir. 2012).

[xxxiii] Id. at 33-34.

[xxxiv] Viacom Int’l v. YouTube, 940 F.Supp.2d 110, 116-17 (S.D.N.Y. 2013).

[xxxv] Eileen McDermott, ‘We Want Action’: Rightsholder Reps Address Platforms in IP Subcommittee Hearing, as DMCA Reform Draft Looms, IP Watch Dog (Dec. 15, 2020), https://www.ipwatchdog.com/2020/12/15/want-action-rightsholder-reps-address-platforms-ip-subcommittee-hearing-dmca-reform-draft-looms/id=128327/.

[xxxvi] U.S. Copyright Office, Section 512 of Title 17, 198 (May 2020), https://www.copyright.gov/policy/section512/section-512-full-report.pdf.

[xxxvii] McDermott, supra note 39.

[xxxviii] Noah Yoo, Sen. Thom Tillis Drafts New Bill to Overhaul Copyright Office and DMCA, Pitchfork, (Dec. 22, 2020), https://pitchfork.com/news/sen-thom-tillis-drafts-bill-to-overhaul-copyright-office-and-dmca/.

[xxxix] Class Action Complaint at 3, Schneider v. YouTube, No. 5:20-cv-04423 (N.D. Cal. Jul. 02, 2020).

[xl] YouTube by the Numbers: Stats, Demographics & Fun Facts, Omnicore (Oct. 10, 2020) https://www.omnicoreagency.com/youtube-statistics/.

[xli] Julie Alexander, Creators Finally Know How Much Money Youtube Makes, and They Want More of It, The Verge (Feb. 4, 2020), https://www.theverge.com/2020/2/4/21121370/youtube-advertising-revenue-creators-demonetization-earnings-google.

[xlii] Mem. of Law in Supp. of Viacom’s Mot. for Partial Summ. J. on Liab. and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense at 5, Viacom Int’l v. YouTube, 718 F. Supp. 2d 514 (S.D.N.Y. 2010), aff’d in part, vacated in part, remanded, 676 F.3d 19 (2d Cir. 2012), 2010 WL 1004561.

[xliii] Id.

[xliv] Opening Brief for Plaintiff-Appellants at 15, Viacom Int’l v. YouTube, 676 F.3d 19 (2d Cir. 2012) No. 10-3270.

[xlv] How Content ID Works, YouTube https://support.google.com/youtube/answer/2797370?hl=en.

[xlvi] Id.

[xlvii] Eric Rosenberg, How YouTube Ad Revenue Works, Investopedia (Jun. 4, 2020), https://www.investopedia.com/articles/personal-finance/032615/how-youtube-ad-revenue-works.asp.

[xlviii] How Content ID Works, YouTube https://support.google.com/youtube/answer/2797370?hl=en.

[xlix] Class Action Complaint, supra note 43, at 6.

[l] Alaina Lancaster, YouTube Smacked With Class Action Over Its Copyright Enforcement, Law.com (Jul. 02, 2020 6:09 PM), https://www.law.com/therecorder/2020/07/02/youtube-smacked-with-class-action-lawsuit-over-its-copyright-enforcement/.

[li] Class Action Complaint, supra note 43, at 4-5.

[lii] Id. at 5.

[liii] Ann Potter Gleason, Copyright Owner’s Love/Hate Relationship with TikTok and Instagram Raises Legal Issues, The National Law Review (Aug. 28, 2020), https://www.natlawreview.com/article/copyright-owners-lovehate-relationship-tiktok-and-instagram-raises-legal-issues.

[liv] Michael Di Iorio, In the Time of Tiktok: How One App is Influencing the Music Industry Through Viral Videos, The Industry Observer (May 15, 2020), https://theindustryobserver.thebrag.com/how-songs-on-tiktok-have-taken-over-the-charts/.

[lv] Id.

[lvi] Id.

[lvii] Id.

[lviii] Id.

[lix] Id.

[lx] Andrew R. Chow, TikTok is Turning New Artists Into Viral Sensations. But Who Actually Benefits?, Time (May 23, 2019 6:13 AM), https://time.com/5594374/tiktok-artists-money/.

[lxi] Claire Chalmers, From Copycat Dances to Unlicensed Music: Is TikTok a Copyright Lawsuit Waiting to Happen?, The Fashion Law (May 20, 2020), https://www.thefashionlaw.com/is-tiktok-a-copyright-lawsuit-waiting-to-happen/.

[lxii] Claudia Rosenbaum, TikTok and NMPA Reach a Global Partnership Agreement: Exclusive, Billboard (Jul. 23, 2020), https://www.billboard.com/articles/business/9422985/tiktok-nmpa-global-partnership-agreement-music-publishers.

[lxiii] Chalmers, supra note 69.

[lxiv] Anna Nicolaou, Music Companies Threaten to Sue Tiktok Over Copyright, Financial Times (Apr. 4, 2020), https://www.ft.com/content/1b3b78ea-32a3-4237-8b79-3595820eeb63.

[lxv] Rosenbaum, supra note 70.

[lxvi] Colin Stutz, TikTok Now Has Short-Term Licensing Deals With the Major Labels, Billboard (Mar. 31, 2020), billboard.com/articles/business/legal-and-management/9347970/tiktok-now-has-short-term-licensing-deals-with-the-major-labels.

[lxvii] Id.

[lxviii] Rosenbaum, supra note 70.

[lxix] Fred Davis et. al, The Independent Artist Sector, Raine (Mar. 2020), https://www.musicbusinessworldwide.com/files/2020/03/The-Independent-Artist-2020.03.14-vEXTERNAL.pdf.

[lxx] Tim Ingham, A New Report Says Independent Artists Could Generate More Than $2 Billion in 2020, RollingStone (Mar. 16, 2020 10:00 AM) https://www.rollingstone.com/pro/features/raine-group-independent-artists-2-billion-in-2020-967138/; it is unclear to what extent the Covid-19 pandemic has affected revenue projections.

[lxxi] Davis, supra note 78.

[lxxii] Ingham, supra note 79.

[lxxiii] Davis, supra note 78.

[lxxiv] Duncan Cooper, How TikTok Gets Rich While Paying Artists Pennies, Pitchfork, (Feb. 12, 2019), https://pitchfork.com/features/article/the-great-music-meme-scam-how-tiktok-gets-rich-while-paying-artists-pennies/.

[lxxv] Id.

[lxxvi] Melanie Weir, How to Add Custom Sounds and Music to a Tiktok, or Pick From Tiktok’s Pre-made Library, Business Insider (May 7, 2020 9:19 AM), https://www.businessinsider.com/how-to-add-a-sound-to-tiktok.

[lxxvii] See Gene Maddaus, Sen. Thom Tillis Proposes ‘Notice and Stay Down’ Rewrite of Online Copyright Law, Variety (Dec. 22, 2020), https://variety.com/2020/politics/news/thom-tillis-online-copyright-act-1234871695/.

[lxxviii] Neil Kokemuller, Advertising Based Revenue Model, Chron, https://smallbusiness.chron.com/advertising-based-revenue-model-71672.html.

[lxxix] Mem. of Law in Supp. of Viacom’s Mot. for Partial Summ. J. on Liab. and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense at 5, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010), aff’d in part, vacated in part, remanded, 676 F.3d 19 (2d Cir. 2012), 2010 WL 1004561.

[lxxx] BMI Sets Revenue Records with $1.283 Billion, BMI (Sep. 9, 2019) https://www.bmi.com/news/entry/bmi-sets-revenue-records-with-1.283-billion.

[lxxxi] ASCAP Reports Record-Breaking 2019 Revenues and Distributions, ASCAP (May 1, 2020), https://www.ascap.com/press/2020/05/05-01-financials-release.

[lxxxii] Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Cal. L. Rev. 1293 (1996).

[lxxxiii] James E. Krier & S. J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, N.Y.U. L. Rev. 70 440, 443 (1995).

[lxxxiv] Merges, supra note 95.

[lxxxv] McKinney, supra note 1, at 6.

[lxxxvi] Howard B. Abrams, Copyright’s First Compulsory License, 26 Santa Clara High Tech. L.J. 215, 215-17 (2009).

[lxxxvii] Merges, supra note 95, at 1296.

[lxxxviii] Id.

[lxxxix] McKinney, supra note 1.

[xc] Peter Alhadeff & Caz McChrystal, Inflation and US Music Mechanicals, 1976-2010, 13 Global Business and Economics Review 1, 3 (2011).

[xci] Id. at 4.

[xcii] Alexandria Mueller, Welcome to the New Age: The Music Modernization Act, 76 Bench & B. Minn. 8, 8-9 (2019).

[xciii] Merges, supra note 95, at 1295.

[xciv] Id. at 1296.

About the Writer…