I had an artist manager ask me a new one yesterday: How do I get live performance footage of new songs recorded on someone’s cell phone removed from YouTube? This isn’t really a new request, we have to have material taken down from websites fairly often. What is new about it is that the recording was made on a handheld digital recorder by a fan at a show where the artist was trying out new material.  Â

Until YouTube, it was possible to “open in Philadelphiaâ€? to try out new material, a time-honored tradition in our business. Artists frequently try out material in small clubs in small towns, and may completely rewrite songs based on how they “feelâ€? live or simply not use certain songs. (This is obviously not limited to artists, but also would include comedians, broadway shows, any number of performers.) Â

My artist client now has to pay me to write notice and takedown letters to YouTube to exercise rights under the DMCA—the same week that YouTube is rumored to be fetching an asking price over $1 billion dollars. That’s billion with a B. My artist asked me to explain to him how it is that YouTube is able to make more money from infringing his work than any artist will ever see in their lifetimes, yet he has to take the time to send a cease and desist to YouTube in some kind of grotesque game cyber shakedown. Â

Of course it is true that anyone can record an artist’s performance anywhere, that’s not the problem. The problem is not with the fan, and I refuse to allow YouTube to try to make it so.

The problem is that YouTube makes no apparent effort to filter videos that are of obviously questionable origin. Riddle me this: If an artist wanted to make their video available on YouTube, would they typically want to post a poor quality video, or would they more likely be interested in keeping that kind of video off of YouTube.

The lawyers for YouTube have tried to get around this issue by implying that they have no way of knowing whether a video that is uploaded is secretly being uploaded by the artist themselves to start a grass roots campaign. The same is true of movie studios or record companies.

There’s a very easy fix to that problem: Ask them. Ask the artist’s permission before YouTube permits the video to be posted. But of course YouTube can’t do that. Asking permission doesn’t “scaleâ€?.   Â

What YouTube means when they say that something doesn’t scale is that in order to accomplish a particular thing, they would have to spend money they don’t have on resources they don’t want to achieve a goal for which they have contempt. It’s like saying, yes I know I may be stealing from you, but it’s too inconvenient for me to find out. Sounds infantile when you think of it that way right?

If a child said that to their parents, they would likely be grounded for a good long time. It’s time to ground YouTube.

Chris Castle is a music attorney in Los Angeles where he represents artists (including KOAR fav 10 Years), producers, music industry executives, songwriters, independent publishers and record companies, and technology companies. Chris is a contributing editor to Entertainment Law & Finance and writes the Music-Tech-Policy blog (http://music-tech-policy.blogspot.com/). He is on the board of directors of the Austin Music Foundation and moderates the digital panel at SXSW. Before law school, he was the drummer for Jesse Winchester, Long John Baldry and Yvonne Elliman
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