DJALCHEMI

Copyright infringement in shared playlists: don't blame the carrier?

When I created a playlist on Webjay last year, I noted the varying legal statuses of the recordings I included — from public domain to creative commons to promotional 'giveaway' — including one I deleted when I knew it was not authorised and had read Webjay's legal guidance.

This Reuters article seems aimed at stirring up trouble for Webjay (and its relatively new owner, Yahoo!), claiming it "makes downloading the Beatles' music or Kanye West's full-length video as easy as a keyword search and a click of a mouse". Well, the Webjay legal guidance does say (perhaps inadvisedly), "[Webjay] helps you find music like Google helps you to find web pages". What they mean by this comparison, however, is that Webjay isn't responsible for making the music available, any more than Google is responsible for publishing all the web pages it indexes. So is Webjay's case being highlighted unfairly?

What Webjay users do is publish links to publicly accessible music files and associated web pages. It's pretty similar to what users of Blogger or del.icio.us are doing every time they add a link from their blog or profile, and those sites make the link available to other people. But no-one seems to expect Blogger or del.icio.us to police the content that their users link to, and check that it's authorised.

We've been here before, of course. While some people have wanted to make Internet Service Providers liable for unauthorised content that is hosted on their servers, the ISPs have understandably resisted intervening as far as possible, feeling that, if they start interfering at all, they will become liable for more content than they could possibly keep up with. What the ISPs do is specify the terms of service, which prohibit their users from doing all sorts of antisocial things (from copyright infringement to spam to porn). If they are tipped off that a user has infringed those terms, they can take action immediately to stop the infringement.

YouTube does the same in its terms for posting video content. These prohibit users from submitting "material that is copyrighted, protected by trade secret… unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein… [or] material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive". Of course, YouTube has plenty of material that contravenes these terms, but the terms of use enable them to dodge liability.

Why doesn't Webjay do something similar? Unlike YouTube, no-one is submitting audio or video material for Webjay to host. To repeat, Webjay just publishes links to material held elsewhere. Should they have terms of use that prohibit their users from linking to copyrighted material unless they have permission from their rightful owner etc etc?

Firstly, that would stop me from posting a link to the BBC News page, because I don't have permission from the owners. Secondly, the copyright and licensing status of a lot of content on the web is not clear. I know that, at least under UK law, all material is protected by copyright by default. The Ballboy download page makes it explicit that the tracks "can't be sold or redistributed without our permission". Fine, but via my Webjay playlist, no-one is selling or redistributing anything — only spreading the word that the tracks exist — and my bet is that Ballboy are happy about that. Then there's the Pete Seeger version of Barbara Allen on this page. By default the copyright in the recording is owned by Seeger or his label (the copyright in the publishing is public domain, as the song is 'traditional'). Did he license Arkansas Tech University to redistribute it? I can't easily be sure; it's hard to reach him, and again my bet is that a university music department is unlikely to be distributing unlicensed recordings. But I admit I can't be sure.

The Reuters article quotes this 02004 Wired article) saying, ""the site does not support links to pirated or unauthorised music. Links to such songs will be taken down." It then goes on to say, "If that was true then, it is no longer the case." Even in 02004, when Webjay was much smaller, it was unlikely that they could have monitored every link. Note that Reuters is quoting the Wired journalist, not Webjay. What Webjay says in 02006 is "If we find one or two unauthorized songs in a public playlist we will delete them; if we find many unauthorized songs we will make the playlist private; if you break the rules repeatedly your account will be locked out" (quoted from their legal guidance, emphasis is mine).

Webjay is not committing to find every unauthorised song, just as ISPs and YouTube do not commit to find every infringing or offensive bit of content on the servers they host. But it does provide three ways for anyone who finds an unauthorised song to report it to them, including this take-down form.

The enormous growth in user-generated content is going to create more and more issues like this. Users do not and will not take legal advice before they post links on Webjay, MySpace, Blogger or any of the thousands of online forums.

And the more I think about it, the more irresponsible the Reuters article seems. Of course, they smell some tension between the major labels and Yahoo as one of the new breed of music media-cum-retailer. But the quote at the end of the article, "'When you look at services like that, functionally they are no different than the old Napster,' said a veteran digital music attorney who asked not to be identified" just serves to confuse. In terms of functionality, attitude to licensing, intent to co-operate with rights holders, origin of distribution, and guidance to users, Webjay is very different.