Thievery Corporations: Don Henley on How Giant Online Platforms Rip Off Creators — And How Congress Can Help

The Eagles have twice postponed their Hotel California tour during the coronavirus pandemic, most recently until October 2021. But on June 2, Don Henley — the band’s co-founder, drummer, and singer — delivered a special live-via-video performance for a particularly important audience: The Senate Judiciary Subcommittee on Intellectual Property.

The occasion was the third in a series of hearings about the 1998 Digital Millennium Copyright Act (DMCA), which gives online platforms that feature user-uploaded content, such as YouTube, a ‘safe harbor’ from liability for copyright infringement, as long as they respond promptly to takedown notices. According to Henley, as well as most organizations of creators and rights holders, it also gives such online platforms an unfair advantage in negotiations.

“As a 55-year veteran of the music industry, I was invited by the chairman of this Senate subcommittee to come here and testify on behalf of the music community — songwriters, musicians, music publishers — all of whom are now unfortunately known as content providers,” Henley said, reading testimony that he had written himself. Speaking calmly, in a jacket and tie, Henley explained why the law — originally designed to allow telecom companies to invest in building out high-speed broadband without worrying about legal liability — has not only enabled piracy, but also become “negotiating leverage to pay license fees that are well below market.” The elephant in the room? YouTube. (YouTube often points out the aggregate amount it pays out to the music business — $3 billion in 2019.)

Henley has been outspoken about creators’ rights for longer than some of today’s online platforms have been around — he helped form the Recording Artists Coalition two decades ago — and he follows the issues as closely as some industry lawyers. When former register of copyrights Maria Pallante was removed from her job in 2016, Henley objected.

Weeks after he testified, Henley spoke with Billboard over email to expand on his views about why the DMCA is “a relic of a MySpace era in a TikTok world.” For Henley, “this is a matter of principle,” as he said in his testimony. “The system is antiquated and badly broken, and the creative community is paying a very steep price.”

How did you first become so interested in copyright and issues of creators’ rights?

I started getting “schooled” in these matters about 49 years ago, at the inception of the Eagles. Like most musical artists of the Boomer generation, we were naive in terms of the legal and financial aspects of the business. So, lacking sound counsel, we made the classic rookie mistakes. We, along with most of our peers, were more focused on the music, the scene, and the socio-political issues that had spilled over from the 1960s into the ’70s. It wasn’t cool, wasn’t the artist’s job, to concentrate too much on economics or intellectual property. That was the province of managers and lawyers. Mainly, we just wanted to make records and hear them on the radio. But there’s a reason it’s called the ‘music business,’ and it has always had a shady side. There have always been sharks — opportunists, ready and willing to take advantage of the green and gullible kids who make the pilgrimage to the music Meccas, in search of The Dream. A young, unproven artist has little or no bargaining power, and so is automatically at a disadvantage. But to be fair, it’s a business that involves a tremendous amount of risk for all parties involved, including the record labels and the managers. But the creators, the artists, risk everything. They get one, maybe two, shots at the brass ring. The odds are long; careers are, for the most part, relatively short.

The first issue you were known for being active on was the effort by the labels to have recordings considered “works for hire” — which I think was the origin of the Recording Artists Coalition. How important was the coalition in stopping that? And you learn anything from it?

In 1999, the lobbying group for the major labels, the RIAA, buried a fundamental change to the Copyright Act in a completely unrelated bill, the Satellite Home Viewer Improvement Act of 1999. Without input from the artists, they amended the definition of ‘work for hire’ in the Copyright Act to include ‘sound recordings.’ The consequence of this amendment would have been devastating for recording artists. It would have effectively eliminated artists’ ability to regain ownership of their sound recordings in the United States. The ability of the RIAA to pass a bill which amended the Copyright Act without opposition from the creative community was a direct result of the labels being organized and the artists not having a coalition to represent their voices. So, a group of artists and artist representatives mobilized and formed the Recording Artists Coalition (RAC). Thanks to the many artists who spoke up, and the support of Congressman Howard Berman, sound recordings were stricken from the definition of ‘work for hire’ in the Work Made for Hire and Copyright Corrections Act of 2000. The only reason that recording artists can now regain control of their copyrights from the labels in the U.S. as Congress intended is because the RAC organized and artists spoke up.

RAC went on to do additional work, but without the same level of success. A few years later, a group of us went to Sacramento to testify about Section 2855 of the California Labor Code — the so-called ‘seven- year statute.’ But it was an exercise in futility. This time, the RIAA and its lobbyists had already done their maneuvering to amend the statute. Behind the scenes, they were able to insert a provision in the seven-year statute which hinders a recording artist’s ability to terminate contracts that extend beyond seven years. The fix was in, and the California Assembly turned its back on the entire creative community that had, arguably, put California on the map as a global center of art and entertainment, especially in terms of recorded music and film.

These stories demonstrate both the difficulty and the necessity of artist advocacy. Artists have to speak up if they want to control their destinies. Issues like these are the reason I agreed, last year, to join the board of the Music Artists Coalition (MAC), but it really is up to the younger artists to educate themselves and speak out.

Since you’re talking about filing “notices of termination” to reclaim rights to your work in the U.S., the natural next question is whether you’ve done this.

We own our post-1978 works. Under current U.S. Copyright Law, we will not be eligible to begin reclaiming our pre-1978 works until 2028. The reversion timeline is 56 years after the original copyright date. Not sexy stuff, but critically important to artists and their descendants.

In recent years, you’ve become outspoken about how copyright law applies online, especially the way the DMCA allows online platforms that make available content uploaded by users, like YouTube, to use it until rights holders ask for it to be removed. What made you so outspoken about this?

The DMCA is an extremely important issue for the entire creative community, not just songwriters and recording artists. It also affects journalists, authors, publishers, photographers and filmmakers — anyone who creates things that can be digitized and disseminated via the internet.

I’ve been speaking out about it for years because it’s a fundamental matter of fairness. The DMCA is an outdated piece of legislation that was written when the Internet was still in its infancy, at least in terms of public use. The legislators who drafted the DMCA, including its ‘safe harbor’ provision, had good intentions, but the Internet is a very different animal now, and the law has not kept up with the technology. Congress couldn’t have anticipated in 1998 when the DMCA went into effect, how quickly platforms would change. Dial-up soon gave way to P2P networks, then P2P anonymity, then BitTorrent, Pirate Bay, torrent indexes and on and on. The genie was out of the bottle and the piracy battle has been raging since the turn of the century. It has crippled the recording industry and made it even more difficult for young people to make a living from their creative work.

As I said in my testimony, the DMCA has shown its age. It’s a relic of a MySpace era in a TikTok world.

You’re a prominent artist, so I assume you get asked to speak out about all kinds of causes, for all kinds of reasons. Why did you choose to speak at this particular Senate Judiciary subcommittee hearing about the DMCA?

I would have preferred that a younger artist speak, but I have roughly 55 years of experience in the music business, and I’m familiar with the subject matter, so I was asked to testify at this hearing. For the past 20 years, hearings on the DMCA have been few and far between, so this was a rare opportunity to speak to legislators about it.

There’s so much going on, that it seems odd that Congress is holding these hearings right now. Did that give you pause?

This particular subcommittee has been holding hearings on this issue since early this year, at the rate of about one per month. So there is momentum.

Again, the creative community rarely gets a chance to be heard on this issue, and the abuse of the safe harbor provision of the DMCA has been going on for over 20 years. So it was an exceptional, critical opportunity to testify. Also, the current loss of revenue from touring has highlighted the need for creators to be paid fairly by the streaming platforms. There is a disparity in the rates paid by services that is directly tied to the DMCA: YouTube and Facebook hide behind the safe harbor provision to avoid paying rates equal to their competitors, Spotify and Apple.

It was interesting to note that there was nobody at the hearing from any of the major digital platforms — not Google, or its subsidiary, YouTube. Nobody from Facebook or its subdivision, Instagram. Nobody from Amazon, the company that, in 2007, began selling MP3s free of digital rights management.

Instead, they sent the head of something called the Internet Association, a lobbying group that claims to be “the voice of the internet economy,” but is simply a front for its funders, which include Google, Amazon and Facebook. He delivered the same, tired party line — the old, vague rhetoric about innovation and collaboration. Innovation for what purpose, exactly? Collaboration with whom? When it comes to music theft, we haven’t seen any collaboration.

On a wonkier level, are you optimistic that the DMCA could actually be changed? It’s very difficult to pass any legislation in Congress these days.

It is critically important to get the DMCA updated to reflect today’s internet. But it will probably be a lengthy process, because Big Tech likes things just the way they are. The playing field is not level; it’s tilted in their direction. Leveling the playing field is going to require younger artists to step up and advocate for themselves. They’re the ones who stand to gain or lose the most, and they need to understand the role that government, and copyright law in particular, plays in their lives, their careers.

The updated European Union addresses this same issue to some extent, although it remains to be seen how it will become law in different countries — let alone actually be enforced. Are you optimistic about that, and what it says about how the tide is turning on this issue?

The European Union Copyright Directive is definitely encouraging. It’s a signal that other countries, which aren’t as beholden to the big technology companies, recognize that creators are being treated unfairly and that the balance of power is off. I think American politicians certainly took notice. It will be important to see how Brexit will impact the implementation of this directive.

Any time you speak out on these issues, you open yourself up for criticism: Here’s another rich rock star who wants more money. Does that bother you?

If criticism bothered me, I would’ve been out of the game a long time ago. What bothers me is that people don’t understand the issue. As I said at the hearing, it’s a shame that the music industry, and particularly the creative community, is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity — people whose voices would never be heard by the people who make the rules, were it not for these hearings.

An entire sub-sector of the American economy is built around the worth of the popular song. Hundreds of thousands of jobs are created and sustained by recorded music and the people who produce it — in electronics, engineering, law, accounting, transportation, construction, manufacturing, management; truck drivers, venue workers, people who make drumsticks and guitars, the list goes on and on.

Music has been one of America’s greatest, most beloved exports for over three-quarters of a century. American music has created more global goodwill for this country than all our foreign policy and diplomacy could ever contemplate.

Is there a generation gap here? It sometimes seems that newer artists are working more closely with YouTube, although some of them have been just as outspoken about this issue.

If some artists want to allow their copyrighted works to be viewed on YouTube for nothing, or next to nothing, they can have at it. But it should be a choice, and right now it’s not. Creators who don’t want their works pirated online should not have to bear the burden of sending a takedown notice for every violation. It’s costly and time-consuming. At this moment, there are approximately six billion posts on YouTube, with about four billion of them unclaimed. The small and mid-tier artists simply don’t have the time or the means to deal with that — it’s overwhelming. In a world where 500 hours of video are uploaded to YouTube every minute, more than one billion videos are viewed on TikTok per day, and there are over 500 million daily active users on Instagram, it’s clear that massive online services are flourishing, while artists have no ability to combat the rampant infringement that occurs on these platforms. But the platforms are clearly capable of removing infringing content.

In October 2006, YouTube announced the introduction of a “content identification architecture,” which purportedly allows them to locate videos under copyright, and remove them. But YouTube’s Content ID system leaks like a sieve. Millions of copyright-infringing videos slip through, undetected. Just three short years ago, YouTube’s parent company, Google, was boasting about sending tourists into space in rocket ships. But they can’t track illegal videos? They can track “likes” and “dislikes” with frightening accuracy, but they would have us believe that they lack the capability to monitor and identify infringements on their platforms and provide enhanced tools for content owners? They just choose not to. It’s reminiscent of that great SNL skit from 1976 with Lily Tomlin: “We don’t care. We don’t have to. We’re the phone company,” which, it’s interesting to note, is posted illegally on Vimeo. But, whether posted legally of illegally, most of us don’t want our music attached to advertising, anyway, not even for five seconds. That’s not why we wrote the songs and made the records. That’s why you never hear any Eagles music in commercials. We just don’t want that, but it should be the artist’s choice.

Content owners send hundreds of millions of takedown notices, annually. But, often, for each infringing link or file taken down, a dozen more pop up in its place. It’s an endless game of whack-a-mole. But, even worse, due to the antiquated procedures dictated by the DMCA, Internet services with clear oversight and control of content posted on their websites are continuing to monetize and collect advertising revenue on videos containing music, even after that music has been flagged by the music’s creator as being a copyright infringement.

You’ve seen how the debate about this issue has evolved since Napster, when Metallica was attacked for speaking out. At this point, though, Silicon Valley probably has a worse reputation that the record labels, and artists like David Lowery and Rosanne Cash are also speaking out. Are things changing?

The record labels represent the Old Music Business. They were, and are still in some quarters, perceived as “frenemies” of the creative community. But the labels slept through the digital revolution that began in the second half of the 20th Century and exploded in the mid-90s with the advent of the Internet, and they’ve been playing catch-up ever since. The enormous digital platforms represent the New Music Business. They are the gatekeepers now, and they wield far too much power. Creators, by and large, have been relegated to the status of “content providers.” Over the past five years, Google has spent an average of $17 million, a year on lobbying. Facebook spent that same amount on lobbying last year. Over the past decade, the tech giants, led by Google, Amazon and Facebook, have spent nearly half a billion dollars on lobbying. The RIAA, by comparison, spends an average of five million a year.

Artist and activist David Lowery, who runs a fascinating website called The Trichordist, calculated back in 2016 that a songwriter would need 288 million “spins” to equal the average Spotify employee salary. A “spin” would include both the public performance royalty (BMI-ASCAP, etc.) and the streaming mechanical, if the artist is lucky enough to get paid on the streaming, at all. That would work out to a per-stream rate of $0.00058, per spin. Rates have improved a little, but not enough.

And among the tech giants, there are some that are worse than others. It is hard to get an exact rate, but a stream of a song on Apple pays approximately $0.006 (just over half a cent), while the same stream YouTube can pay as little as $0.00087 (less than a tenth of a cent). Why does YouTube pay 15% of what Apple pays? The DMCA is the culprit. But the real question is, why does any artist want to support a platform that pays them so much less?

It is imperative that artists at all levels, who work in every genre of music, speak out. When the burden of policing copyright infringements on global platforms lies with the artists instead of the massive technology companies that own and operate the platforms, we have a system that is not working. We have a system that is antiquated and badly broken and the creative community as a whole is paying a very steep price. We need to speak out for those songwriters and recording artists who are struggling to make a living, particularly now as our industry has been decimated by the pandemic. We need equitable compensation for the rights guaranteed to authors under the Constitution. Given the current ban on large social gatherings and the indefinite pause in live performances, income from licensed digital music services may be the only real source of revenue that music creators can rely on in the foreseeable future. So it is vitally important that the devaluation of music, which is a direct result of the DMCA, ceases, and that creators be paid a market rate for their music across all platforms.

Years ago, Rolling Stone ran an article that said you have “conservative” views on copyright. But you’re known for being progressive and one could argue that creators’ rights is a progressive issue. How do you see it?

I didn’t see that article, but anybody who labels my views on copyright as “conservative” simply doesn’t get it. My views on copyright are progressive and founded on a respect for the individual creators trying to make a living off their craft. I’ll soon turn 73 years of age, so I’m in the final chapter of my career. I’ve got little to gain and nothing to lose, so I’m speaking out on behalf of those who are struggling to make a decent living in the music industry, but can’t under the present system. There are millions of them and they qualify as small businesses. They’re not necessarily interested in empire-building — they just want a seat at the table. But the table is now controlled by the digital cartels that T-Bone Burnett rightly called “surveillance capitalists.”

The global digital platforms — Google, Facebook, Amazon — have been successful in marketing themselves as mavericks, rebels on white horses riding out to vanquish the tyranny of anonymity and bring freedom to the people. They claim to be a democratizing force when they are, in fact, monopolies. They’re the modern-day equivalent of the Bell Telephone Company, a monopoly that dominated the telephone services industry in North America from 1877 to the early 1980s. Like some of today’s most well-known politicians, they’ve been able to create and sell a belief system that runs counter to what they actually do.

The enormous profits that have come with this concentration of power tell their own story. Today, Google’s YouTube controls almost 60% of all streaming-audio business, and revenues at Google have grown from $430 million in 2002, to $162 billion in 2019. YouTube alone is a $15 billion-a-year business, with well over 100 million people streaming music on its platform, just in this country, yet it pays out less than 10 percent of the total streaming-audio revenues artists receive. More creative content is being consumed than ever before, but less revenue is flowing to the creators and owners of that content. The situation is well documented in Jonathan Taplin’s 2017 book, Move Fast and Break Things.

So you see Silicon Valley as a new face of corporate power?

Although it had been around for about 50 years, the phrase “sticking it to the man” was adopted by late-1960s counterculture groups in their battles against people or organizations that symbolized power or authority — government, law enforcement, corporate America. “The Man” in this sense, had a negative connotation, as opposed to the sometimes-positive connotation it has today. As David Lowery has pointed out, when people today illegally upload music or music videos, they seem to be thinking — much like the people who created Napster, BitTorrent, and Pirate Bay — that they’re sticking it to the man, when, in fact, they’re sticking it to the artist and, by extension, everybody who depends on the artist, from the roadies, to the truck drivers, to the ushers at the venues, to the tens of thousands who work in the various industry-related fields.

In the modern, Western World, we tend to conflate freedom with choice, and choice is then understood to be a righteous flourishing of the unfettered will — often without its critical covalent, responsibility. In our culture, choice serves as the central totem of consumer capitalism, and those who present choices to us appear as benevolent footmen to our own freedom. Google, Facebook and Amazon all paint themselves as champions of choice, white knights wielding the magical scepter of innovation, the avatars of autonomy. They are the new gatekeepers of the culture, building their empires on free, or nearly free, content — work that rightfully belongs, or should belong, to the people who created it. Recording contracts have often been likened to indentured servitude, but what these gigantic digital platforms do could be seen as tantamount to aiding and abetting thievery.

There will be those who say that my views, and those who share them, are the last gasps of the old order, the pre-Internet record industry. In response to that, I offer these wise words from Pete Townshend, from way back in 1971: “Meet the new boss. Same as the old boss.”