Patrick McKay, who has been a harsh critic of some of YouTube's failings when it comes to the DMCA process and various takedowns, has highlighted a very serious issue with YouTube that has received little attention. YouTube now admits that, when it comes to some videos that contain content from certain "partner" companies, it won't repost those videos
, even if the video uploaders file a counternotice and show that they're relying on fair use. YouTube claims that it will still keep some of those videos blocked due to "contractual" obligations
YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.
In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.
If this sounds vaguely familiar to something in the past, you may recall that a few years ago, Universal Music and Megaupload got into a bit of a spat when UMG issued a questionable takedown
of a song promoting Megaupload, which featured a ton of big stars singing the praises (literally) of Megaupload. Megaupload eventually sued UMG, but ended up dropping that lawsuit as a month or so later it had bigger legal issues on its hands, following the US's decision to shut down Megaupload. But, at the time, Universal Music made a strange claim that it had some sort of contractual agreement
that allowed it take down videos like Megaupload's. YouTube quickly came out with a statement denying this, but the situations described in McKay's post certainly raise serious questions about this, and clearly suggest that YouTube has made at least some deals that effectively wipe out fair use for some users. I assume it will surprise next to no one that the key example that led McKay to discover this situation... also involved Universal Music.
As I noted at the time of that UMG/Megaupload spat that I believed the real issue might be YouTube's contract with Universal Music for Vevo -- and I suspect that's still the case now. As I said then, part of the "announced" deal was that as part of providing the backend for Vevo, YouTube would transfer over the videos of various UMG artists, such that they appeared exclusively on Vevo. I suspect that's the same thing happening here. Because part of the Vevo deal is a promise that Vevo gets exclusive rights to videos involving certain artists' works, it allows YouTube to simply ignore fair use claims from users on such content, and refuse to ever post them again.
Now, as McKay notes, this is (mostly) well within YouTube's rights. I remember, a few years back, seeing a discussion on some legal blogs about this question. The DMCA implies that if you file a legitimate counternotice following a DMCA takedown and if
the copyright holder does not take further legal action, the service provider is obligated
to put the work back up in no less than 10, but no more than 14 business days. But, to some extent, that seems questionable. After all, as a service provider, any site has the right to not
allow certain content to be published if it doesn't want to. And yet, if read literally, some could make the argument that the DMCA obligates a service provider to put up content even if it doesn't want to. As McKay notes, in this manner, the only liability is to the person who filed the counternotice, and any such liability would likely be pretty limited.
Either way, there's no way to look at this that makes YouTube look good. Following so soon on our other story about YouTube taking down
a video on a questionable "terms of service" violation and then refusing to repost the video, it's once again a situation where it seems like YouTube needs
to do a much better job handling these situations. While we obviously don't know the details of the UMG contract, fair use rights cannot be signed away
, especially by two third parties. It would be a shame if YouTube decided that it would arbitrarily give UMG the ability to deny someone's fair use rights in posting a video.