A collection of at least 75 rare performances by the Rolling Stones briefly appeared on a brand-new YouTube account on New Year’s Eve, then vanished just a day later, as spotted by Variety. The uploads could have been the work of a dedicated pirate, but copyright lawyers have another theory: ABKCO Music & Records, which administers the rights to the band’s 1960s catalog, uploaded them intentionally as a way to extend their hold on the recordings’ copyrights in Europe.
All the recordings turned 50 years old in 2019, meaning they were slated to become public domain in the European Union unless they were published in some form before the end of the year. But it’s unclear if fleeting YouTube uploads are enough to satisfy the EU’s publishing requirements, according to Zvi S. Rosen, lecturer at the George Washington University School of Law. “It’s really kind of pushing the edge of what’s possible under the law,” Rosen tells The Verge.
The videos were uploaded to a YouTube account called 69RSTRAX, and as stated by Variety, were mostly live concerts and alternate versions of songs from the Let It Bleed and Sticky Fingers albums, all recorded in 1969. A Google cache of the 69RSTRAX page shows videos were uploaded with titles like “The Rolling Stones - “(I Can’t Get No) Satisfaction” - Oakland Coliseum Arena (Early Show) 11/9/69.” Variety says the videos bore “official copyright language” and much of the audio was low quality or tampered with. Some were overlaid with “a dial-tone-like sound as loud as the music,” presumably to detract would-be audio rippers. Variety says the videos were removed on January 1st, but they weren’t entirely — they were just made private.
In the EU, sound recording copyrights are protected for 50 years after they’re made, but that protection can be extended to 70 years under a “use it or lose it” clause. Basically, the provision says that a recording’s copyright is 70 years, so long as the recording is “lawfully communicated to the public” at any time within the initial 50-year term.
If a copyright owner doesn’t do anything with a recording in that 50-year window, then it goes to the public domain.
This clause was designed to protect performers and prevent recordings that labels thought would be less commercially viable from sitting in company vaults. Performers can issue a notice of termination if the label hasn’t done anything with their material in that 50-year time frame, and then the copyright owner has a year to exploit the material in order to retain and extend the copyright.
But what meets the definition of exploiting material under EU copyright law? The directive’s language is loose, with no guidelines for what “available” means, or how many copies of a recording constitutes “sufficient quantity,” says law firm Hughes, Hubbard & Reed. Labels have found tricky ways to take advantage of this ambiguity to extend copyright ownership. For example, Sony Music pressed 100 CDs with rare Bob Dylan recordings and offered limited download access to online buyers in France and Germany. In 2013, Apple Records and Universal Music Group briefly sold a bunch of demo recordings and performances by the Beatles on iTunes in Asia, Australia, the Middle East, Europe, and North America in order to prevent them from falling into the public domain.
ABKCO has reportedly done this before. In December of 2016, 30 unreleased recordings by the Rolling Stones from 1966 were uploaded to a strange YouTube account, following the same pattern. They were mostly live recordings and alternate takes, the channel had no previous uploads, and the videos were switched to private mode shortly after being published.
Although there’s no concrete evidence that links ABKCO directly to these YouTube accounts, the timing of their creation, the material uploaded to them, and the fact that the videos were made private instead of removed — indicating no copyright takedown notices were issued — all point to the EU copyright extension as a plausible theory.
But if ABKCO did intentionally muck up these audio files, upload them to this random YouTube account, and only had them visible for a day, Rosen says it’s questionable whether that meets the directive’s threshold of releasing the recordings to the public.
While YouTube is a hotbed for arguments over copyright infringement in the United States, it’s fascinating to think that it’s potentially being used as a platform to establish copyright in other parts of the world, thanks to laws like the EU copyright directive. Whether a brief YouTube upload counts as an official release in court is another matter.
Of course, there’s also the possibility that this isn’t some long-term label play. Perhaps some random person had a collection of rare recordings from the Rolling Stones, made a burner account on YouTube, decided to upload it all just before New Year’s Eve, and then changed them all to private a day later. But that’s a lot of effort with no clear payout, and there was a clear incentive for ABKCO. As Rosen says, “Why the hell else would someone do this?”
Comments
it’s worth noting that the account is definitely owned by ABKCO; when you look at their channel’s about tab, there’s a "for business inquiries" email link that (after a recaptcha check) leads to info (at) abkco dot com
By Nellko Agogo on 01.03.20 5:59am
It insinuates further, but can’t say that means it’s conclusive as anyone can put any email they want on the about tab of a YouTube page they run without verifying ownership of that email.
By Dani Deahl on 01.03.20 2:37pm
IP law, in almost all current configurations, is a fraud.
By indignantgoat on 01.03.20 9:02am
Do you feel that intellectual property should not be owned? I can agree there are definite ways to improve how it can be handled, but in this case the artists are still alive.
By Porcupine-Tree on 01.03.20 1:50pm
I think 50 years is typically more than a sufficient time for an artistic work to be protected under copyright. You’ll have either profited off of its release or it will have fallen into obscurity. In the case of live cuts and recordings like this which haven’t been released for 50 years, its fairly clear that the interest in the recordings themselves would be as a novelty only directly related to the otherwise immensely profitable catalog of the artists. No release of 50 year old music is going to manage to financially enrich an obscure artists in the way that it would enrich the company that holds the rights to The Stones’ live recordings.
In brief: If you music hasn’t made you rich in the 50 years since its release, it’s not going to make you rich with 20 years tacked onto the end.
By CPD_1 on 01.03.20 1:58pm
Well you have the Beatles/Pink Floyd/Rolling Stones stuff which is still making a lot of money after 50 plus years. I was always a fan of something like life of the artist +20 years(last surviving artist, and this protects in case of untimely death).
By Porcupine-Tree on 01.03.20 2:25pm
I feel that ‘intellectual property’ is, in most cases, a legal fiction that is sold as being ‘pro-artist / creator’ when it is most often pro-‘entity with the largest legal team’, and it is almost always anti-consumer.
I understand the desire to ensure that artists and creators are rewarded for their work, but it is my belief most of what is accomplished through IP law could be established through capitalizing on first-mover advantage and fans’ desire for authentic experiences. (IP / copyright / etc really just amounts to legally enforced first-mover advantage for a ridiculous length of time. )
In the digital age we live in, more content is stolen than ever in the history of the world, and yet more content is also paid for than ever before. If it’s your desire, you can see any movie, listen to any album, read any book, and, maybe a week later, play almost any game, without paying a dime. In most cases, you can do so either by pirating it, or by going to a library.
There are hundreds of ways to poke holes in the validity of the logical and legal framework built around IP. If it is actual property, why do the rights ever end? My children, should I leave them my house, won’t be forced out in 120 years because it becomes ‘public domain’. If it is part of a business, why is it not taxed as inventory? If pirating IP is bad / evil, why was it fine- romanticized, even- when we did it with cassette tapes? Why is ‘borrowing’ a book from a library fine, but not ‘borrowing’ a book from a torrent site? Why do we allow more and more works of art to literally cease to be available in any form to the public because of these laws?
Lastly, yes, members of the Rolling Stones are alive. Even if ABKCO put out CD’s of these recordings tomorrow, the artists would likely not be due a single dime.
If we really cared about protecting artists, we would move toward a much more open vision of IP, based on compulsory licensing. We could continue to register IP as we always have, but for every instance of an artist’s creation, a royalty automatically derives to the artist or their estate, forever. Not only would we reward artists, but we would also ensure the preservation of their art, no matter what. We would also create an environment that is built for the consumers of art.
By indignantgoat on 01.03.20 6:03pm
Greed
By TheSventinel on 01.03.20 9:35am
Is there enough demand for this? And, are they selling any of it that if it went public domain, would it matter?
By Winklemeier on 01.03.20 12:07pm
Interesting question here…they uploaded some live performances and while that video may not have been offered to the public…the original albums have continuously been sold…so wouldn’t that prevent the live version from going public domain since the song is still rightfully under copyright?
By Porcupine-Tree on 01.03.20 1:02pm
No, because there are different copyrights assigned for composition of a song and the recording of a song.
By Dani Deahl on 01.03.20 1:50pm
So putting something on YT is now being considered as published? Like what, self-published or published by YT? If this turns out to be true I wonder what kind of narrative they will come up with if you want to upload your stuff on openload and consider it as published as well.
By Texax on 01.03.20 3:04pm