Analysis It's not often a $450bn multinational is humbled by a single classical musician with a tape recorder. Yet that seems to be what happened this weekend.
Google spends billions on marketing, paying lobbyists and buying influence. It funds over 150 organisations and overtook Goldman Sachs last year as the biggest corporate political donor in the USA.
It has politicians and regulators firmly where it wants them – and can sue the ones who aren't. Google must, therefore, have thought that cellist Zoë Keating would be a pushover. Keating releases her own work without a record label, and so conducts her negotiations herself. No fancy lawyers here to complicate things. Right?
What they probably didn't reckon on was the solo artist apparently keeping a record of their conversations.
Last week the cellist re-opened last year's controversy of the treatment of independent musicians and small operators by Google's YouTube service by asking her fans for advice. If she refused to sign the new terms, Google would stop paying her, but could continue to use her music on YouTube, she reported. If she signed, she'd lose control of her work. The contract would tie her down for five years. We reported her concerns here on Friday.
Over the weekend, Google disputed her account. Her claims were "patently false", it fumed to industry blog Digital Music News.
However, Keating appears to have kept verbatim notes – strongly indicating that a tape was running – and she's now published the transcript of the conversation she said she'd had with the YouTube rep she'd been negotiating with for a year.
The transcript is available here. Keating wants to continue her current deal with Google as it stands – but that's not an option, as the rep makes clear in the transcript. She must sign the new contract and opt in to the Key music service. She can't run videos without monetisation. Google will "block" her (in the Google rep's words) if she refuses to sign, "but the commercial terms no longer apply".
"Yeah, it’s harsh," the rep agrees in the transcript, before helpfully pointing out "a loophole". She can disassociate herself from her material and settle for the peanuts YouTube offers, "if you’re not so concerned about revenue". The kind of revenue a successful artist might hope pays the rent.
What's at stake? Experts have contributed several excellent pieces on the spat. The core issue, as David Lowery points out in a must-read post, Google wants exclusive control over when and where an author's work appears on the internet.
In other words by saying "no" to Music Key, [you allow] YouTube [to] still feature user generated videos on their service AND you won’t get any money. Think about it. This is like saying “no” to a record deal but result[ing] in the label having your songs forever and paying you nothing! YouTube is EVIL.
That seizure of control hurts, explains writer David Newhoff, because it strikes the very reason Keating wanted independence as an artist. It's why she doesn't have a record label. (We're not sure if she has a publisher – her work is widely used in TV, film, theatrical productions and ads, and a publisher helps here).
Weaker copyright laws
Newhoff, too, agrees that The New Man seems very similar to the Old Man, the music industry we were told would die out.
"The new boss wears a new uniform, but he’s just another boss. Only this time he has a worse deal in one pocket and a rock in the other."
Industry analyst Mark Mulligan, a strong supporter of music streaming services, thinks Google has become corrupted by absolute power. Google's actions wouldn't go very far in the marketplace if it had not been for the weakening of copyright, he argues.
A familiar argument over the past 15 years is that copyright is a regulatory-style impediment wielded by large old companies to impede progress. But it was always an individual right designed to protector the creator against The Man. The Man used to be Dodgy Megacorp Records, while today The Man is a gigantic internet company, with a monopoly gatekeeper over those very routes to market an artist needs to take. The Man is more powerful than ever, but it's a different Man.
With strong copyright, neither Old Man nor New Man could get away with such actions as YouTube has attempted here: assuming control of global digital distribution against the artist's consent. But thanks to the erosion of legal protection, power has shifted away from the individual, and towards "The Man", on a scale never seen before. Because copyright is so weak today, Google can try it on.
SOPA was a clumsy and imperfect attempt to take out foreign piracy sites, which distort the market significantly. And you know what happened there. The consequences wash up eventually, and Zoë Keating is on the receiving end today.
As Silicon Valley has been very successful in persuading the public to throw away their strong legal protections, Google may well get away with it. How's your SOPA protest looking today? ®