Faced with the prospect of copyright strikes, Content ID claims and potential account loss, thousands of YouTubers, TikTok users, and other content creators use music provided by Epidemic Sound.
Founded in 2009 and based in Sweden, Epidemic Sound has a library of more than 35,000 music soundtracks and 90,000 sound effects.
Licensing is offered on a subscription basis for as little as 9 euros per month and for that, personal creators can use Epidemic’s music and monetize a channel on YouTube, Facebook, TikTok, Instagram and Twitch.
Commercial users publishing content for clients and businesses pay a slightly higher rate. Enterprise users pay even more but are free to include Epidemic Sound content in TV shows and ads, for example. According to a lawsuit just filed in a California district court, Meta is utilizing Epidemic Sound content on a massive scale but isn’t paying the company a single penny for the privilege.
Massive, Rampant Copyright Infringement
“This action seeks to stop the theft of music created by hundreds of musicians, songwriters, producers and vocalists, theft occurring knowingly, intentionally and brazenly by Meta on its Facebook and Instagram social media platforms on a daily basis,” the complaint begins.
“Defendant Meta is not merely aware of this infringement. It has actively infringed, as well as participated in, encouraged and enabled such infringement.”
This type of language has been seen before in copyright infringement lawsuits filed against user-generated content platforms. Often the response from the platform is that if rightsholders send a DMCA-style notice, they’ll take down infringing content posted by their users. The complaint filed by Epidemic goes far beyond that.
Epidemic’s licenses allow its licensees (subscribers) to incorporate Epidemic’s tracks into their own content but no permission is given to license, sublicense, distribute or otherwise authorize use of Epidemic content to third parties. If third parties such as Meta want to use Epidemic content directly, they need to obtain their own license on the correct terms.
The lawsuit claims that Meta’s Facebook and Instagram are using Epidemic content as if it were their own, making that content available to users of Facebook and Instagram, but with no licensing in place to do so.
“Meta itself has been storing, curating, reproducing, performing, distributing, and otherwise exploiting Epidemic’s music on a daily basis, without a license,” Epidemic’s complaint reads.
The numbers in the complaint are significant. Epidemic says its music is available across millions of videos that have been viewed billions of times. Approximately 50,000 infringing videos and 30,000 new uploads containing Epidemic’s music are uploaded to Facebook and Instagram, respectively, on a daily basis.
The company estimates that around 94% of content using Epidemic’s music on Meta’s platforms is unlicensed and thus infringing.
Meta Incorporated Epidemic Content Into Its Music Library
Epidemic’s claims are potentially extremely serious. The company alleges that Meta has created a curated library of music that it stores and organizes by genre. This library is made available to users of Facebook and Instagram, not only for downloading and streaming, but also for use in user-generated video content and posts.
“Epidemic knows of over 950 of its music tracks that have been reproduced, stored, made available to, and distributed to its users by Meta through its Music Library or through its other content sharing tools without a license. Epidemic is confident that further research would reveal additional infringements,” the complaint reads.
In all cases, Epidemic is the copyright owner of both the sound recordings and underlying musical compositions, so more than 1,800 copyrighted works are allegedly being infringed by Meta. Epidemic says Meta is generating revenue on the back of this infringement but thus far, Meta hasn’t obtained a license or shared any portion of its advertising revenue with the music company.
Alleged Direct Use of Infringing Content
The complaint alleges that Meta’s infringement has “grown even more rampant” recently, in part due to Meta’s creation of tools and features that enable users of its platforms to infringe Epidemic’s rights. Two Instagram features – Original Audio and Reels Remix – are called out specifically.
When Instagram users create a short video clip called a Reel, they are able to search the platform’s audio library for music to accompany the Reel. If the Reel contains music not detected by Instagram as being included in its library, the ‘Original Audio’ feature presumes the content is owned by the user posting the Reel.
When other users view that Reel, a button appears that allows them to ‘rip’ the music to include it in their own Reel. The music can also be added to their personal library on the platform for future use.
“Meta provides the tools to allow the viewer to synchronize that music to that viewer’s own Reel and promotes such tool publicly. Meta acknowledges that this unlimited copying, sharing, synchronization and distribution of music, licensed or not, is the intention behind the Original Audio feature.”
“[T]he Original Audio feature allows Meta to extract, or separate the music from the original video content in which it was incorporated, and reproduce it for any of their billions of users who wish to incorporate it into their own video content, irrespective of whether Meta (or anyone else) has any authority to offer, reproduce, distribute or otherwise use that music in the first instance.
“No one, even Epidemic’s licensed subscribers, has the right to do this without Epidemic’s authorization,” the complaint adds.
Reels Remix allows users to take another user’s audiovisual content, including any music, and incorporate it into their own Reel. Epidemic claims the feature encourages and contributes to “exponential infringement”, whereby the infringing acts of one user are replicated by any number of others.
Meta Has “Stonewalled” Epidemic
Meta offers a tool called ‘Rights Manager’ that’s designed to help rightsholders “manage, authorize, protect and drive value from their videos, audio and image content on Facebook and Instagram.” According to the complaint, Meta allowed Epidemic to access Rights Manager for video content but refused to grant access for audio content management.
“Meta’s refusal continued despite Epidemic’s repeated explanations that the rights management tool for video was woefully insufficient to monitor or protect its music on Meta’s platforms at scale,” the company says.
“Meta’s unjustified and unexplained refusal to provide Epidemic with access to its rights management tool for music content has enabled and continues to contribute to the rampant infringement of Epidemic’s music on its platforms.”
The lawsuit states that in addition to infringement by users, Meta is aware that it is “actively storing, offering, curating, reproducing, performing and distributing” Epidemic’s music without a license, via its Music library and its “Reels Remix” and “Original Audio” features.
Epidemic says that Meta claims to have licenses with other distributors that authorize it to use some Epidemic tracks but Epidemic states that no third parties are authorized to provide Meta with rights.
Copyright Infringment Claims
The complaint states that by making or causing to be made unauthorized reproductions of Epidemic’s copyright works, and then made available for permanent download, streaming and synchronization, Meta commits willful direct copyright infringement. As a result, Epidemic is entitled to maximum statutory damages of $150,000 per work, to a minimum of $142 million in damages.
Epidemic says that Meta’s music library and associated features Original Audio and Reels Remix both encourage and provide the necessary tools for Facebook and Instagram users to infringe its copyrights. The complaint again demands maximum statutory damages of $150,000 per work for willful infringement, to a minimum of $142 million in damages.
The complaint states that Meta is also liable as a contributory copyright infringer by providing tools to its users to enable them to infringe Epidemic’s copyrights. Alleging willful infringement, the complaint again seeks maximum statutory damages of $150,000 per work but no less than $142 million. The company also seeks a permanent injunction.
Epidemic Sound’s complaint against Meta, obtained by TorrentFreak, can be found here (pdf)