This band wants to keep its music free online. Here’s why

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For many musicians, it’s frustrating to see their songs used on the internet without getting royalties for their use.

But for The Midnight, a synthwave band based in Los Angeles, it’s been an opportunity to get free publicity. That’s why the band has held off on claiming copyright infringement for their songs used on streaming platforms like Twitch for as long as they could. In fact, until recently, the band was able to let streamers on Twitch play their music without receiving copyright takedowns against their videos.

The Midnight formed in 2012 with singer-songwriter Tyler Lyle and drummer-songwriter Tim McEwan.

Justin Little, who has managed The Midnight through Bailey Blues since 2018, found early on that the band’s following was a very internet-based community. So when he heard that streamers on video platforms Twitch and YouTube were using the band’s music, he saw it as free exposure as opposed to a problem.

“I came to the pretty quick realization that a lot of their fans are a very sort of heavily online community and very active on Twitch,” Little said. “It was a short time later that I found out that a lot of their fans have been turned on to them by streamers playing their songs on Twitch.”

‘The Wild West’

For many streamers, the issue of playing music in their videos came to a head in 2018 when many record labels began cracking down on copyright claims, especially on Twitch. Under the Digital Millennium Copyright Act (DMCA), record labels and other rights holders have the ability to copyright claim their artists’ music when used in online videos.

YouTube created Content ID to deal with the claims, Little said. This system had already been in place on YouTube before the 2018 DMCA crackdowns and is still used today.

Content ID automatically identifies copyrighted material in a video and encourages users to buy proper licenses to use copyrighted materials in their videos. The Midnight has given licenses to many YouTube users under this system, Little said.

“They were monetizing stuff on YouTube through Content ID and their self-service distributor, which is easy enough since YouTube makes it pretty easy, even though it’s not perfect,” Little said. “But with Twitch, it is kind of the Wild West.”

Twitch does not have an equivalent to Content ID for its videos. Rather, Little said the rights holders,

which are most often publishers or the record labels themselves, instead do mass “purges,” where they shift through videos of past livestreams, called videos on demands (VODs), looking for copyrighted music.

In August 2018, many labels issued a myriad of strikes against even some of Twitch’s most popular streamers and warned that too many strikes would result in deleted VODs or even account suspensions.

Lyle said The Midnight first became aware that streamers who used their songs were getting strikes during the massive round of video takedowns that happened in August 2018.

“In this new digital world, there are some companies that have figured out how to monetize streaming,” Lyle said. “Apparently it’;s a complicated undertaking and Twitch, along with a lot of other streaming platforms, are having kind of a difficult time transitioning into something that feels standardized and fair to all parties involved.”

‘When the DMCA Hits’

While most major record companies were part of the 2018 Twitch DMCA takedown requests, Little and Bailey Records instead started researching DMCA and copyright laws.

As part of that research, Little reached out to The Midnight’s independent record label, the U.K.-based Ninja Tune, to see if the label intended to DMCA claim The Midnight’s songs.

“So I went to the record label in July 2020 and the publishers and just said, ‘Are you guys doing any DMCA takedowns? So do you have any plans to do DMCA takedowns on Twitch, you know, now or in the future?’” Little said. “Everybody said no.”

Lyle said he was grateful for Ninja Tune’s support. While larger labels will often prioritize monetization over a band’s wishes, both Little and Lyle believe Ninja tune has shared The Midnight’s view on DMCA takedowns on Twitch since it first started affecting the band.

“It’s really nice to be able to call your person up at the label, have that conversation and have that be respected because, you know, not every label would be as receptive to that,” Lyle said.

After consulting with Lyle and McEwan, Little said the band, its producers and himself all decided not to DMCA claim The Midnight’s music on Twitch VODs. The band even wrote a tweet about on Aug. 12, 2020.

“It’s by far their highest engaged with tweet,” Little said. “It’s got like two million engagements or something like that, which is crazy for the 30,000 or 40,000 Twitter followers they have.”

The Midnight continued to keep its music DMCA-free as long as it could. However, in June 2021, the band found out that a group of music rights holders that have a stake in The Midnight’s catalog may begin issuing takedowns on videos that contain their music, Little said.

“You know, we can only do so much up to a certain point, and now it’s like these big entities are having to figure this stuff out that are larger than the band itself,” Little said. “It’s really up to the platform and the rights holders, the labels, the publishers and the rights organizations in the music business to make agreements and make that process easier for people. I think that’s at the crux of the Twitch conversation.”

Embracing streamer culture

The band still plans on working with streaming services and streamers going forward as they navigate the news of the takedowns themselves, Little said.

The Midnight wants to support streamers and other content creators. However, Twitch, record labels and streamers will need to work together to ensure everyone knows how music licensing works and how DMCA and other relevant laws apply to the world of streaming, Little said. That’ll be a learning curve for all involved parties, including The Midnight.

“What’s made it really difficult for a band like The Midnight that wants their fans to create as much as possible with their music is that you have platforms that make it increasingly difficult,” Little said. “Even for an almost totally independent band, there are tough forces at play here, where you want to support everything that people do but you also have to put food on the table and make a living through the creative pursuit.”

Little said Twitch has used mass email notices to communicate with streamers in the past about any major takedown notices issued by rights holders, including a wave of about 1,000 takedown notices that Twitch received in the beginning of June of this year.

In the aftermath of this latest wave of takedowns, Twitch sent out an email asking content creators to be careful about using music and warning that rights holders have been scanning past VODs for copyrighted music, Little said. However, many content creators still don’t fully understand how DMCA applies to them, he said.

“A fan doesn’t care about the ins and outs of the licensing process,” Little said. “They just want to know

if they can use that for the thing that they want to do, which is great. That’s all they should care about, you know. So I think that we need to find a way to move forward that doesn’t involve mass takedowns and doesn’t involve people being scared to use music.”

When asked about the issues related to DMCA takedowns, Twitch spokesperson Samantha Faught said in an emailed comment that Twitch emails streamers immediately upon receiving a request to take down a VOD with copyrighted music.

“Our conversations with music rights holders, both with labels and publishers, are active and ongoing, and we continue to work with them to establish potential approaches that would be appropriate for the Twitch service and our entire community,” Faught said.

The DMCA takedowns have especially been hard for internet-focused bands like The Midnight because of how their followers engage with the band’s music, Little said. The Midnight gained popularity when famous streamers such as Dr. Disrespect and Ninja would plug the band’s music.

After the band’s initial tweet about DMCA, even more streamers started using The Midnight’s songs. Streamer Julien Solomita even added The Midnight to his popular streaming playlist “when the dmca hits” on Spotify.

“I think Ninja’s still the biggest gamer in the world, and that was like using their music as an intro and talking about their music and telling the hundreds or thousands of people who are watching him that this band is amazing and that you have to go check them out? What better endorsement could you have for a band? It’;s free advertising, you know,” Little said.

For Lyle, who grew up using Napster and other sites that allow users to download free music, the DMCA issues also speak to the reoccurring issues in the industry of how to make music accessible to younger fans and those who may not be able to afford albums, be them physical or through a digital service such as Spotify.

However, the way people consume music has changed dramatically in the last few years, and more people are buying and playing music online as opposed through albums, Lyle said. As such, record labels will need to be willing to embrace a new digital-first generation of music listeners.

“You know, I totally sympathize with the 18-year-old who, you know, wants to break all the rules and hates DMCA takedowns,” Lyle said. “I know that there are enough market pressures that will push this conversation along and, hopefully, these tech companies will find an equitable solution that we can all be stoked about.”

‘The big machine’

Lyle was in the music industry when one of the first biggest shifts to digital happened – that is, the transition from albums to iTunes and then the rise of Spotify and other digital downloads. While this was a “tectonic” shift for the industry, he said he doesn’t feel streaming will be as monumental of a shift, especially if musicians and labels embrace tech the way they had to when iTunes and Spotify first came out.

“I survived as a professional musician during the shift between iTunes downloads and Spotify,” Lyle said. “It was a rocky transition, and a lot of people got out of the business at that time. But I don’t think it’s quite as dire as that right now.”

Given the popularity of platforms like Twitch and YouTube, Little said he doesn’t think larger record labels will be able to keep fighting against the use of their musicians’ songs online for much longer. Nor does he think they should, he added.

“Large entities and corporations are very skeptical of new technology and what that means for their overall revenue stream,” Little said. “With the Universal Music’s and Sony’s and things like that of the world, of course they’re trying to monetize everything that they can.”

Lyle also understands the need to monetize music, but doing so through DMCA takedowns that target fans isn’t the way to do it, he said.

“The big machine needs to make money, and that’s what the big machine does,” Lyle said. “You know, thank goodness we’re with a smaller indie label. You know, they’re great.”

Like Little, Lyle also believes that more record labels will have to begin embracing digital revenue streams, including Twitch, however rocky that transition may be.

The industry was able to transition to digital-first sites like iTunes and Spotify, Lyle said. It’ll soon need to find a better way to handle how streamers and other internet users are permitted to play songs in videos besides massive purges of online content due to DMCA claims, he said.

“I think it’s unsustainable for the tech companies, and it’s also unsustainable for the artists,” Lyle said. “The status quo right now is also really a headache for the streamers, especially with Twitch. We love Twitch, but the status quo just doesn’t work for anybody, really.”

Little added that record labels will also need to be part of a longer-term solution. Rights holders have largely kept bands like The Midnight out of conversations involving whether their music will be subject to DMCA takedowns if used on sites like Twitch, Little said.

While there are advantages to having larger entities handle rights and usage issues, it also often comes

at the expense of bands losing at least some control over how their music is used by fans, Little added.

“There’s a collective bargaining power from the music business that is working on something with the platform,” Little said. “We’re just not even in the conversation, and we wish we were. But the catalog of every artist that’s ever been around makes a lot more money than The Midnight, and so those are the ways that decisions are often made.”

Digital-first music revenue

Little said he can appreciate larger labels wanting to protect their larger artists from having their songs used and abused through digital content. He can also understand the desire to make money off people using their songs online.

However, Little added that he doesn’t believe that these companies understand how to use streamers as a way to organically bolster their musicians’ follower-base. That’s especially true for newer, largely internet-based artists like The Midnight, he said.

“While they’re sort of figuring out what this new technology is all about and blocking it and the process, they’re doing a disservice to the developing artists and folks who could use the exposure,” Little said. “And very anecdotally, just reading through comments online, so many people are like, ‘Oh, I never heard of this band, but I saw this thing and YouTube recommended this and all that stuff so.’”

For The Midnight, the best solution to balancing massive DMCA takedowns and ensuring artists and records get paid will have to involve listening to fans, streamers and streaming services, not just record label companies, Lyle said.

Even with the news that The Midnight will be involved with DMCA takedowns in the near future, the band won’t forget the importance of the online communities that support The Midnight, including Twitch and other streamers, Little said.

Many people embraced indie bands like The Midnight digitally before they did so with albums, vinyl, concerts or even merch. As that trend continues, more musicians and labels will need to be willing to listen to what their online communities have to say, Lyle said.

“We need to kind of come together — you know, labels and fans and mega tech companies — and figure out a way forward,” Lyle said. “This is the new public square. This is how people socialize and communicate, so I think understanding how important that is should be a priority.”

Little said he agrees with Lyle, and he believes better educating streamers and fans on fair usage will have to be a first step in that process. And for that to be successful, both platforms like Twitch and the record labels themselves will need to be part of that endeavor, he said.

In the meantime, Little isn’t sure when takedowns may be issued against Twitch videos that use, plan on using or have used The Midnight’s songs in the past. When asked if the potential for takedowns means Twitch streamers won’t be able to use The Midnight’s music in the future, Little said that remains uncertain, too.

“There could be instances where takedowns are issued,” Little said. “They’re not going to come from us directly unless it’s content that we don’t want to be associated with. But, you know, I guess I sadly have to say that we have to wait and see.”

This article was produced and syndicated by MediaFeed.org.


This band wants to keep its music free online. Here's why

Kaitlyn Farley

Kaitlyn Farley is MediaFeed’s writer/editor. She is a masters of science in journalism candidate at Northwestern University, specializing in social justice and investigative reporting. She has worked at various radio stations and newsrooms, covering higher-education, local politics, natural disasters and investigative and watchdog stories related to Title IX and transparency issues.

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