Dear Google: Public domain compositions exist

Daniel Benjamin Miller:

Since YouTube is the dominant video platform, a lot has already been said about its copyright claims system. Most of that has had to do with questions about what constitutes fair use (in movie reviews, for instance). Google’s AI is mostly trained to recognize the presence or non-presence of content in your video, not whether or not your use is fair (something that varies between jurisdictions, by the way). But what I’m going to discuss here is much more clear-cut: the performance of public domain music.

While there’s certainly artistic merit in new compositions, there are also a lot of us who enjoy performing existing classical music. Luckily for us, there’s lots of that in the public domain. The boundaries of what’s fallen out of copyright depend on the country, but virtually everything published in the nineteenth century and earlier is free for everyone to use.

Unfortunately, Google seems not to be aware of this fact. Recently, I uploaded a production of Gilbert and Sullivan’s Trial by Jury to YouTube, and it instantly got hit by four copyright claims. I went to go contest them — something I’ve done before for this kind of thing, and always with success for public domain music — but that really shouldn’t be necessary. Trial was first published in the 1870s. Gilbert and Sullivan died in 1911 and 1900, respectively. As far as I know, this opera isn’t under copyright anywhere in the world.

Of course, while the music is definitely in the public domain, new recordings can definitely be under copyright. If I’d uploaded a copyrighted D’Oyly Carte Company performance of Trial, I’d expect a copyright claim — it’d be totally justified. But that’s not what I did! In fact, the recording I uploaded was an entirely new one (in which I was myself involved). Maybe it got confused with another performance? Nope! YouTube flagged four segments as using the melody of “copyrighted” songs — but all the compositions on which I had supposedly infringed were just numbers from Trial!

So the AI is good. It correctly identified what I was using, and that I’d uploaded a new recording using a melodies from Google’s database of copyrighted compositions. The only problem is that these melodies aren’t copyrighted.

Many taxpayer supported K-12 School Districts use Google services, including Madison.