OCR monetizing mixes on YouTube

[Sir_NutS]

35 minutes ago, Chimpazilla said:

I think the difference between the old way (site ads) and the new way (youtube ads) is that now OCR is making revenue off of specific, identifiable remixes, instead of just "remixes in general."  I think it should be ok, with a couple of caveats:

1. We should update the remix agreement to include specific language about the fact that the remix videos on youtube are monetized, with the funds going to OCR and not to either the remixer or the original artist(s)

2. We should make sure that none of the original artists (Nintendo, Square Enix, etc.) would have any viable claim against OCR making money from their original work

3. We should do some budget projections to see if making money in this way is even worth the possibility of pissing off ReMixers, viewers, and potentially original artists.

Of course, I agree with all these points, but keep in mind that to be able to download a remix, people have to go to the mix page, which shows them ads, and makes ocr revenue off of specific, identifialble remixes.  There's no button for "download all the mixes" or to download random remixes without visiting the specific remix page.  That is, unless you torrent them, which of course has no relevance to ads.  The "old way" is really no different.

[Neifion]

27 minutes ago, jnWake said:

In the end, a relevant question is: why do you submit your remixes to OCReMix? I personally do it because I want to share my remixes and OCR lets me do that. OCR lets you build an audience that you'd probably not build without OCR. Then, if you earn your audience, you can try to earn money, preferably with original content that doesn't involve the legal issues that remixes do.

I mainly focus on original compositions and I don't submit my arrangements to OCR. And I earn my revenue by taking commissions, projects, sales on my website/iTunes, etc. And when I do sell an arrangement, it's done legally through Loudr's licensing.

But look, obviously I'm skeptical about this new approach and I don't agree with the direction, but once more, it's OCR management's decision. Keep all the revenue or not, ensure that the original publisher/rights holders are okay with this or not, it's your game. It will be interesting to see how this all goes down from here on out.

[Brandon Strader]

20 minutes ago, zircon said:

1. It would make what we do a for-profit endeavor which makes a HUGE HUGE HUGE difference to copyright holders, even if OCR itself is non-profit
 

Do you have proof of this? Can you prove that site staff is not being paid? Is there some confusion between OCR itself and the site staff, let's clarify this -- OCR the site is non-profit, but the staff is not, correct?  If that's not the case, can proof be provided that neither the site nor the staff is for-profit? As mentioned earlier we're far beyond taking the staff's word for it. I wouldn't trust someone who went behind my back 2 months ago to try to exploit me or my work. 

Were sales of Super Cart not too good? That's unfortunate. 

[Meteo Xavier]

1 minute ago, AngelCityOutlaw said:

Answer to question from 1-11:

"None of this matters"

Like, I don't even know what point you're trying to prove here.

That you guys flipping your shit over this are grossly unrealistic over how you think you're supposed to be compensated for work you've done here.

You don't actually know the value of your work, but you want it compensated anyway.

You had no agreement to be paid for what you did, but you want it compensated anyway.

You didn't even do the work hoping to be directly compensated for it, but you want it compensated anyway.

And any reminder of how unrealistic this is is called "nihilistic" and "defeatist".

The point I'm trying to prove is that the level of criticism here is unreasonable. The response to it seems to amount only to, "All I'm hearing is I'm not getting paid and I won't listen to anything else until I am!" It's like, well, damn, not sure what else to tell you then.

Any answers to any follow up questions or responses you might have are already here in the topic, I'll refer you to them.

[Nabeel Ansari]

18 minutes ago, Brandon Strader said:

Do you have proof of this? Can you prove that site staff is not being paid? Is there some confusion between OCR itself and the site staff, let's clarify this -- OCR the site is non-profit, but the staff is not, correct?  If that's not the case, can proof be provided that neither the site nor the staff is for-profit? As mentioned earlier we're far beyond taking the staff's word for it. I wouldn't trust someone who went behind my back 2 months ago to try to exploit me or my work.

No one is far beyond taking the staff's word for it. You're the only person asserting that OCR staff is lying about making money off the site. It's pretty insulting, and to be frank, kind of disgusting in the face of how productive the rest of this thread has been. Since I am close friends with much of the staff, I take personal offense that you're slandering them like this. You need to desist on this point. It's so far removed from the reality of the rest of the discussion we're having.

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Were sales of Super Cart not too good? That's unfortunate. 

They were great, and it was a win for everyone involved. Total killer idea, would do again.

[Brandon Strader]

Nope. I only believe evidence now.

The fact that the monetization is still up is troubling. I do not endorse or approve of this monetization, nor do I accept any form of legal liability regardless of the content policy. I do not agree to that policy or endorse it. Legal liability rests 100% with OCR and its staff. 

[Gario]

1 minute ago, Brandon Strader said:

Do you have proof of this? Can you prove that site staff is not being paid? Is there some confusion between OCR itself and the site staff, let's clarify this -- OCR the site is non-profit, but the staff is not, correct?  If that's not the case, can proof be provided that neither the site nor the staff is for-profit? As mentioned earlier we're far beyond taking the staff's word for it. I wouldn't trust someone who went behind my back 2 months ago to try to exploit me or my work.

The staff doesn't make any money at all, it's volunteer work.

We are not "far beyond" taking the staff's word for this, as you suggest - that's why this conversation is happening in the first place. If you are far beyond it, then so be it, but ultimately that isn't anyone's problem but yours. Honestly, this is a good conversation to have, so thank you for bringing it up, but if your only contribution past that point is to tell everyone on here that no one should trust anyone on here again without every staff member pulling out "proof" (which is virtually impossible, by the way, without delving into each of our personal lives) then... yeah. There is nothing you will get out of this conversation.

[AngelCityOutlaw]

1 hour ago, Meteo Xavier said:

That you guys flipping your shit over this are grossly unrealistic over how you think you're supposed to be compensated for work you've done here.

You don't actually know the value of your work, but you want it compensated anyway.

You had no agreement to be paid for what you did, but you want it compensated anyway.

You didn't even do the work hoping to be directly compensated for it, but you want it compensated anyway.

And any reminder of how unrealistic this is is called "nihilistic" and "defeatist".

The point I'm trying to prove is that the level of criticism here is unreasonable. The response to it seems to amount only to, "All I'm hearing is I'm not getting paid and I won't listen to anything else until I am!" It's like, well, damn, not sure what else to tell you then.

Any answers to any follow up questions or responses you might have are already here in the topic, I'll refer you to them.

Value is subjective

No, but it wasn't monetized before

No, but it wasn't monetized before

Your "reminder" is irrelevant given the current situation

The criticism is completely warranted and your point is that musicians shouldn't be compensated if they did a fan work for free, that was free, but then the host decides to monetize it for whatever reason and intentionally keeps the creators in the dark - an unfair situation that could possibly now put those free fan works in the way of the copyright ban-hammer. Your opinion is unreasonable. 

Maybe if you saw the counter-productivity in your outlook on this kind of thing, you wouldn't be so cynical about music careers in general.

[Brandon Strader]

It's not impossible to prove, it just involves transparency and being responsible.. maybe impossible for specific people, but not in general. We need an audit, we need someone to go over the financials, and the horrors within need to be disclosed. Chimpazilla already offered to help, and nobody responded to her. What are they hiding? 

I have more reason to believe the site will be dead in a year because the financials weren't properly held and OCR falls into legal hell, than anything else. There's more evidence of that. 

I found out about this monetization because I saw that zircon had retweeted my Chrono Cross mix. I know he hates me, and there had to be a reason he would have done that. And there it is -- a Chrono Cross mix will make more money. 

[jnWake]

I think there are more important points of discussion here than random conspiracy theories.

[Brandon Strader]

It's not a conspiracy theory when their go-to excuse for everything unethical they do is "we're not being paid"

Ask yourself really, why they need so many hundreds of dollars above operating costs, if it's not going into keeping the site running. 

[zykO]

Brandon, you're literally sounding like Donald Trump right now. I hope you realize that is not a compliment.

As has already been said, you initiated a much needed conversation on this subject as it needed to be exposed and addressed. We all have varying opinions on the YouTube monetization issue but right now you're derailing it by being a knucklehead. 

I've been a part of or around the staff for over a decade and a half and i have yet to catch any inkling that anybody was pocketing any kind of cash off the site. I surely haven't seen a dime. Honestly, you need to knock it off and get back on the subject at hand which is the ethical and legal ramifications of monetizing fan arrangements and stay off that wonky tinfoil shit.

[Brandon Strader]

Are we still discussing how it's illegal, or how illegal it is? Nobody seems to care about them going behind our backs 2 months ago to start profiting from the music. People disagree with me that the trust is broken, that's fine.. After all these years I'm not as accepting as I used to be of behavior like that, especially recently. While I won't retract any assertion until seeing proof, I'll concede that the more important point right now to get an answer on is how they intend to make their misstep into illegality right, and then read their apology. 

I'd also like to point out I'm still against the music being monetized -- I'd like it taken off of mine, at the very least. It'll get taken off 1 way or another. 

Also any and all album projects I have done or will do, I do not want monetized. I didn't ask any of the contributors or publishers if they were ok with it, and I do not intend to ever have that conversation. 

[Thomas Neil]

On ‎8‎/‎12‎/‎2016 at 6:37 PM, Brandon Strader said:

It's not impossible to prove, it just involves transparency and being responsible.. maybe impossible for specific people, but not in general. We need an audit, we need someone to go over the financials, and the horrors within need to be disclosed. Chimpazilla already offered to help, and nobody responded to her. What are they hiding? 

I have more reason to believe the site will be dead in a year because the financials weren't properly held and OCR falls into legal hell, than anything else. There's more evidence of that. 

I found out about this monetization because I saw that zircon had retweeted my Chrono Cross mix. I know he hates me, and there had to be a reason he would have done that. And there it is -- a Chrono Cross mix will make more money. 

I may have only recently signed up here, but I have been visiting this site for many, many years. Over the years I have developed a deep respect for all of the staff and the work they have done for so many people of their own free will. I would be absolutely shocked to find out any of the things you have just said are true.

[OceansAndrew]

1 minute ago, Thomas Neil said:

I would be absolutely shocked to find out any of the things you have just said are true.

Don't worry, none of them are true, Brandon is just being Brandon. 

[Newt]

1 hour ago, zircon said:

Because it's making money for a non-profit organization, one where all staff are volunteers, and because you agreed to it in the submission agreement. If that isn't compelling, why not?

From a legal perspective, it makes a huge difference how and for what reason money is generated, and where that money goes. If a charity uses a track of mine to raise some money, I look at that very differently than if a for-profit corporation does. Or maybe the opposite. I might not be OK with some charities using my music, but I might be OK with some corporations using it. In any case, who/why is relevant to me. Why is it not relevant to you?

 

1 hour ago, zircon said:

The site staff, djp included, have not ever been paid... In a way it's even more "non-profit" than most non-profits. 

snip snip; i don't think i'm cutting context though...

 

Neblix made arguments that the submission agreement may not be valid in this case. I am not a lawyer, I do not know if those arguments are valid. My understanding (as a non-lawyer) is that neither does anyone else until it's been tested in a court of law (or there is some very-likely applicable precedent of which i'm unaware).

You should avoid the non-profit thing, as it doesn't make the argument you're trying to get it to make. Non-profits generate tons of revenue each year, they simply can't account profit. Often the revenue goes directly to the board, or into a trust for their use. Non-profits are also not equivalent to charities. Even if they did, many charities have maintainers that line their pockets from their activities (I make no judgement of whether this is good/bad; I expect many earn their keep many times over).

That OCR barely generates enough revenue to keep itself running is indeed a concern. It's unfortunately irrelevant to the legality of this practice (neither of us qualified to make real judgments about). If OCR aims to generate revenue directly from its content, I would expect it to do so in a manner that complies with (at minimum) US federal laws/regulations. That some members of staff share this belief and apparently this was not vetted is concerning to me.

Not having money is not a valid defense for stealing, and concerns of single points of failure or unexpected costs are not a defense for not properly licensing content you monetize.

 

Copyright is serious and important; I would expect you of all people to recognize this as someone who licenses their content relatively successfully. I am unaware of any statute that makes unprofitable ventures immune to the legal necessities of licensing content.

 

Whether OCR can do this isn't something that needs to be discussed here. That is something staff should discuss with their accountant and lawyer.

If OCR can do this, whether they should is something that could be discussed, but IMO is largely irrelevant to my knowledge as the prior question has not been answered by anyone qualified to do so.

[zykO]

I am certainly not suggesting a gradient of legality; something either is or isn't. I don't know enough about copyright law or creative content law to voice a informed stance on that. However, that is still very much what this discussion ought to remain about. An audit very well may need to be done just for the benefit and sake of the site; not because you think David is pocketing "profit" (as opposed to revenue going to the site).

I'm also against my work being monetized unless I am aware of it. For me, game arrangement is a hobby. It's a pity it gets recognized more than my original work does but my original work is where I will seek to monetize it and strike it rich (in that perfectly crafted dream world that isn't real). No I don't expect "Invertebrate Retreat" to make me any money (although I was ticked for quite some time that it was the title track of an anthology album released by Tommy Tallarico way back and I didn't see a dime of royalty since of course he owned all the licensing and blah blah water under a bridge that no longer exists). 

I just don't get the assertion that there's funny business going on. Bad business, perhaps. But funny business? Now you're calling out their character and that I'm not going to support. Whereas you are suggesting they are guilty until proven innocent, i maintain they are innocent until proven guilty. Not because they're my friends but because that's the American thing to do... which you would think with so much Americanness in your sig, you'd be down with.

For the record, I do not currently have a stance on the YouTube ads issue. I see both sides and both sides are compelling. If I felt that OCR was making boatloads of cash (lol) off it, then I might have a problem as I've dedicated the past god knows how many years putting music together for the community and have yet to make a penny off it or because of it. I don't like the idea of somebody else making even couch-fodder change off my sweat any more than anyone else. But I also don't think OCR is making any real profits here at all. The revenue, from all indications, is for self-maintenance. Otherwise, if sources such as Patreon or peddling merch at cons or the site ads or YT ads go to shit, the site ends up needing to be paid out of pocket (which is an outrageous thing to ask considering the sheer magnitude of it) and if that can't happen, then OCR is toast.

Which is precisely what happened to VGMix. Nobody, unless wealthy and so inclined, is going to just self-fund the whole thing perpetually. Maybe when I strike it rich and become the rockstar i've always wanted to be, I'll spot OCR 100k a year for posterity. 

But let's just keep this talk nice and clean, fellas.

[Sir_NutS]

There's also a thing to be considered about "profit", whatever is made extra of just website sustaining, is put back on making ocr better.  Do you want ocr to stay as is, and never expand or change, not promote vgm music more, that the staff keeps investing their time which most of them don't have, and money into promoting ocr everywhere they can?  Improvements not only take time, which the staff provides for free and without asking anything in return, but it also requires money.  Money for extra development, extra promotion, etc.  Not only giving all this "profit" back to the artists generates more problems than it solves, it also stagnates OCR's mission.

[Nabeel Ansari]

1 minute ago, Sir_NutS said:

There's also a thing to be considered about "profit", whatever is made extra of just website sustaining, is put back on making ocr better.  Do you want ocr to stay as is, and never expand or change, not promote vgm music more, that the staff keeps investing their time which most of them don't have, and money into promoting ocr everywhere they can?  Improvements not only take time, which the staff provides for free and without asking anything in return, but it also requires money.  Money for extra development, extra promotion, etc.  Not only giving all this "profit" back to the artists generates more problems than it solves, it also stagnates OCR's mission.

It's not about if profit can be ethically justified, it matters if it's legal.

[Brandon Strader]

5 minutes ago, Sir_NutS said:

There's also a thing to be considered about "profit", whatever is made extra of just website sustaining, is put back on making ocr better. 

Have we seen evidence of OCR being better? A friend on facebook earlier said it still looks like 1999. 

Do we have any evidence of the youtube videos being better, or are they still the very old 360p template? 

[zircon]

Re: legal stuff. A lot has been said on this. Here's a quick primer. Any and all use of copyrighted materials, by anyone for any reason other than licensees or copyright holders, is de facto infringement. Let's get that out of the way. If you make a fan remix and upload it on YouTube with no monetization, that is by default considered to be infringement. Let's make that 100% crystal clear. 

Fair Use is a legal concept that exists as a defense against claims of copyright infringement. So if Party A uses Party B's copyrighted material, and Party B says "Hey, I'm going to sue you", Party A can say "nuh-uh, it was fair use." Whether or not that defense is valid is determined on a case-by-case basis. There are no universal rules, just standards that are used to evaluate each case individually.

So if you want to take a hardline view, then OCR since day 1 (with or without ads) has been infringing copyright. But obviously that's not the whole story, since in all of OCR's lifetime and even after considerable publicity, it has never been sued, despite many major copyright holders being well-aware of the site's existence. That's because Dave has done his homework, consulted with lawyers, and come to the conclusion that OCR would likely fare well in court (if it came to that) with a Fair Use defense. And chances are those entities have taken no action because they believe OCR's use is in fact fair, and does not interfere with their own rights to commercialize their work.

My own view, as a music industry professional (though not a lawyer), is that having monetized videos on YouTube is not going to make any material difference in a court of law compared with advertising on the site itself. If a copyright holder believes that OCR's use of copyright is infringing, my own (educated) guess is that they are not going to say that site ads are OK, but YouTube ads aren't. Very unlikely, especially given the extreme proliferation of unlicensed covers on YouTube including some on major channels. 

Put simply: in my view, informed through my experience in the industry, if you think YouTube video monetization is illegal, or otherwise infringing/wrong, then everything OCR has ever done is illegal.

---

On the topic of YouTube and shielding from liability specifically, the advantage of YouTube in that department is that you can work with multi-channel networks (MCN) who have the resources and connections to take care of copyright issues. That's why so many major channels are part of networks, so that when a developer or publisher flags their Let's Play video (or whatever), they have a team that can deal with the claim and come to an arrangement. That was one big reason why Dave was considering this at all, because we'd be able to work with an MCN.

Quote

It's not impossible to prove, it just involves transparency and being responsible.. maybe impossible for specific people, but not in general. We need an audit, we need someone to go over the financials, and the horrors within need to be disclosed. Chimpazilla already offered to help, and nobody responded to her. What are they hiding? 

There's the conspiracy theory explanation, and then there's the explanation that Dave (the only person who has any actual authority related to the site, its financials, etc.) is married, with a full-time job, and two very young kids, on top of existing responsibilities running the site, that have taken up the majority of his time and he hasn't gotten around to having a deep conversation with Chimpazilla on this. I was talking to her today and I'm sure Dave would have chimed in, were he not en route to Otakon. 

[Nabeel Ansari]

6 minutes ago, zircon said:

My own view, as a music industry professional (though not a lawyer), is that having monetized videos on YouTube is not going to make any material difference in a court of law compared with advertising on the site itself. If a copyright holder believes that OCR's use of copyright is infringing, my own (educated) guess is that they are not going to say that site ads are OK, but YouTube ads aren't.

So this is your view, now why do you hold this view? Any particular cases or previous patterns? Or specific language of the law? I want to know why you're convinced of this, because to me my gut reaction was that "of course" it would make material significance. It's a legit question.

[Neifion]

15 minutes ago, zircon said:

My own view, as a music industry professional (though not a lawyer), is that having monetized videos on YouTube is not going to make any material difference in a court of law compared with advertising on the site itself.

Great. That's your view. Maybe OCR won't get sued. Maybe they will.

But is that the view of every single person who has had their remix unknowingly monetized? What if they don't share your optimism? What if they are concerned about getting tangled in legal action which, even if it is highly unlikely, is still possible?

You didn't get permission before involving other people in, at most, potentially illegal and, at least, ambiguously legal activities.

You could have made a simple announcement: "Hey, we're going to monetize videos. If you don't want your video monetized, inform us and we will take it down from YouTube."

If it's 100% your material and you want to fly with it, great. But when other people are involved, get permission. At least notify them. Isn't that something that pretty much everyone knows to do? When you're going to do something with someone, don't you ask if they want to do it?

Instead, you went under the radar. That's irresponsible.

[zircon]

Well, let's go over the 4 factors for fair use that courts use to determine whether a use is infringing or fair, and how web ads vs. YouTube ads would make a difference.

1. Purpose and character of the use

This asks whether a use is of a commercial nature, or for nonprofit educational purposes. At the same time, it also favors transformative uses over non-transformative ones. Well, the transformative factor of the use (remix of copyrighted material) is no different whether it's viewed on our site or on YouTube, so that's a wash. That leaves commercial vs. non-commercial. We know that obviously selling something is commercial, but is showing ads alongside something commercial? There's no hard line rule on that, however...

https://wiki.creativecommons.org/wiki/Defining_Noncommercial

Creative Commons commissioned a professional market research study to determine people's views on this matter. What they found was that:

• Both creators and users generally consider uses that earn users money or involve online advertising to be commercial. My take: Based on this, as far as OCR is concerned, it wouldn't make a difference whether the "online advertising" is on a website or on YouTube.

2. Nature of the copyrighted work

This is not relevant here to questions of OCR on its own site or YouTube as it has to do with the source work.

3. Amount and Substantiality

Same thing. The content of the remix is no different in both cases.

4. Effect upon work's value

Does an infringing work affect the copyright owner's ability to commercially exploit their original work? Once again, OC ReMixes being freely available for download already, I don't see how YouTube would change anything. In fact, if I were playing devil's advocate, I might say that offering downloads is a lot more harmful than non-downloadable streams (videos).

 

[WillRock]

3 minutes ago, zircon said:

Any and all use of copyrighted materials, by anyone for any reason other than licensees or copyright holders, is de facto infringement. Let's get that out of the way. If you make a fan remix and upload it on YouTube with no monetization, that is by default considered to be infringement. Let's make that 100% crystal clear. 

Fair Use is a legal concept that exists as a defense against claims of copyright infringement. So if Party A uses Party B's copyrighted material, and Party B says "Hey, I'm going to sue you", Party A can say "nuh-uh, it was fair use." Whether or not that defense is valid is determined on a case-by-case basis. There are no universal rules, just standards that are used to evaluate each case individually.

Put simply: in my view, informed through my experience in the industry, if you think YouTube video monetization is illegal, or otherwise infringing/wrong, then everything OCR has ever done is illegal.

Well yeah, I think we're all aware that "technically" its all illegal. However, as you say, as a general rule, its left alone, because companies are generally cool with it, its free exposure for game music after all, it does no harm. My concern is that a line is being crossed. One day, website ads go up. Then a Patreon is made. Then youtube videos are monitised. Whats next? Spotify? Maybe you'll sell ocr CDs unlicensed! Hell you might as well since it is all illegal anyway right. I kid but you see my point? My issue isn't that I think its illegal, I know its illegal and i'm worried about how far it can go before they try and shut it all down. We have a good thing I reckon, no one has complained - YET - but this has always been a slightly risky game. Now, I feel this is playing with fire. Just because you think something won't happen doesn't mean it won't. Murphy's law.