YouTube Won't Put Your Video Back Up, Even If It's Fair Use, If It Contains Content From Universal Music

from the that's-a-shame dept

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.

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Companies: google, universal music, vevo, youtube

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Comments on “YouTube Won't Put Your Video Back Up, Even If It's Fair Use, If It Contains Content From Universal Music”

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133 Comments
Rikuo (profile) says:

Now, while Youtube, as a private company, would usually have the right to say what can and cannot be published on their website…in my opinion, that simply isn’t true for them. Again, in my opinion, that would hold true if they selectively chose which videos to allow to be uploaded, but they don’t. All you have to do is upload a video and its viewable, at least until a third party blocks it on copyright grounds. Youtube are (or were) a neutral third party, providing the box on which anyone could stand and make speech. Now, they’re running around being selective.

It’s the wording that outrages me. I’d be pissed but forced to agree if Youtube had an ethos or something. For example, if they were a religious website and actively said that no-one could upload videos praising other religions. However, here, they are denying people’s right to free speech, while at the same time, saying they’re acting as a neutral medium. I have never seen a law that says you must deny fair use claims, never mind ContentID itself.

I too am a producer of videos, although obviously I am not a very famous one. With this, I am no longer going to upload my videos to Youtube. I will upload one more, to explain why.

Youtube, it was the USERS and VIEWERS who made you what you are. The hundreds of millions of people who used your service. Not the copyright industry. I didn’t see the copyright industry being involved in the Arab Spring. I saw people using Youtube as a tool for free speech in harsh, dictatorial nations. Well, you have now turned your back on everything you ever claimed to represent. You have only re-affirmed my hatred for copyright: even by going through every single possible motion to stay within the law, Patrick McKay is denied service, not through any fault of his own, but because you continually feel as if you must bend over for the copyright cartels.

Anonymous Coward says:

Re: Re:

Now, while Youtube, as a private company, would usually have the right to say what can and cannot be published on their website…in my opinion, that simply isn’t true for them. Again, in my opinion, that would hold true if they selectively chose which videos to allow to be uploaded, but they don’t. All you have to do is upload a video and its viewable, at least until a third party blocks it on copyright grounds. Youtube are (or were) a neutral third party, providing the box on which anyone could stand and make speech. Now, they’re running around being selective.

I don’t think that’s an entirely accurate characterization. Youtube already blocks/removes certain videos because of a handful of things prohibited in its terms of service, some of which are completely legal:
-Sexual content
-Violent or repulsive content
-Hateful or abusive content
-Harmful dangerous acts
-Child abuse
-Spam or misleading
-Infringes my rights
-Captions report (CVAA)
To me this just smacks as another “voluntary partnership” like the six strikes, where while there is no legal mandate to do anything, the service providers can still go beyond what the law calls for.

Anonymous Coward says:

Re: Re: Re:

To me this just smacks as another “voluntary partnership” like the six strikes, where while there is no legal mandate to do anything, the service providers can still go beyond what the law calls for.

That’s right. It’s private ordering to protect copyright holders. Just the sort of thing that Mike hates.

Anonymous Coward says:

Re: Re: Re:2 Re:

I was referring primarily to “Six Strikes,” as that was what I quoted. I agree that they don’t need to be protected from fair use, but I think that much of what is labelled as “fair use” from anti-copyright, pro-tech bloggers such as Mike is probably not actually so.

ChrisH says:

Re: Re: Re:

I agree. Youtube’s terms of service probably say it can remove videos for a variety of reasons. The liability for not re-posting content probably applies more when you are paying a web hosting site. I understand that youtube is obviously getting something from its contract with Universal, but if the policy hurts its users, why have it?

Ninja (profile) says:

If anyone still need any further reason to boycott Universal and pirate their stuff without a single vestige of remorse then I’d guess this is a very compelling argument. I think Universal comes right below Disney and Sony in the bottom worst of humanity (or above depending on how you see it heh).

Other than that it’s more of the same. The MAFIAA crippling services they touch (and that let them have their ways). This is only bad for Youtube and Google in the long term. Once people get fed up enough they’ll turn to better/alternative platforms. Daily Motion/similar come to mind.

Google will notice it sooner or later. OR, well, be replaced.

Anonymous Coward says:

Re: Re: Re:5 Re:

Please define “right” and “privilege.” If copyright is merely a privilege, then how do copyright owners have the ability to sue others who engage in copying? If fair use is a right, then why don’t fair users have the ability to sue others who interfere with their exercise of that right?

You have it backwards. Reading TD will rot your brain–and lead you to make silly claims such as these.

jupiterkansas (profile) says:

Re: Re: Re:6 Re:

Why is this so hard for people to grasp?

In a world without laws, anyone can copy anything and there’s nothing wrong with it (it’s not against the law). It is our right, and it’s in our nature. Copying is how we learn everything!

Along comes copyright law and says only the creator can make a copy of certain artistic works. That is a privileged given by the law. Just like it’s a privilege to drive a car. It’s not a right, despite what it’s called.

However the law recognizes that it’s beneficial and necessary for some copying to occur without the creator’s permission – that is fair use. It’s recognizing everyone’s natural right to copy in special circumstances, such as criticism and commentary, or for education.

The creator doesn’t have absolute control over their creation, because artistic works are a part of culture, and culture belongs to everyone. You don’t need permission to make a cultural reference.

Gwiz (profile) says:

Re: Re: Re:4 Re:

I don’t see how that distinction matters.

It matters when too many rights holders think that fair use requires some sort of permission. It leads to the diminishing of the Fair Use Doctrine by way of “attrition litigation” . Those with the deepest legal war chests win. Kind of negates the “fair” part of Fair Use.

Chronno S. Trigger (profile) says:

I don't think Youtube likes people any more.

“the service provider is obligated to put the work back up in no less than 10, but no more than 14 business days.”

Really? I have a BS copyright claim on one of my videos and Youtube is giving them 30 days to respond to my counter notice.

Am I the only one who thinks Youtube is starting to take the first steps down the path to oblivion?

nasch (profile) says:

Re: I don't think Youtube likes people any more.

Am I the only one who thinks Youtube is starting to take the first steps down the path to oblivion?

The question is, when Vimeo or whatever takes over as the number one video site (which seems inevitable unless YouTube changes course), how long before Google buys them as they did YouTube?

Anonymous Coward says:

the points raised:
a) if the entertainment industries can squash the (re)posting of videos, how long before they try to say that as certain items were not fought for reupping, there’s no need to have any ‘fair use’ at all
b) youtube cant do a better job than it already is because there are no people checking what is being handled by automatic processes. no human intervention, no changes made
c) regardless of what UMG wants, what gives them the right to override fair use any way?
d) if youtube is allowed to do this sort of thing, why not be honest about it and state the real reason why this something has happened. stop pretending that it is something the uploader has done wrong.
e) start having humans speak to people when there is a dispute of any sort, instead of just posting out ridiculous auto messages
f) stop doing ‘back room deals’ that harm customers, just to please a backward industry that keeps spiting out the dummy when it cant have it’s own way!

Anonymous Coward says:

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.

Strange how you discuss the text of the DMCA without providing and discussing the actual text. You’re referring to Section 512(g)(1)-(2):

(g) Replacement of removed or disabled material and limitation on other liability.–

(1) No liability for taking down generally.– Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception.–Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider–

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

By not replacing the material in the 10-14 day period under 512(g)(2)(C), it only means that the service provider can’t get the limitation on liability given under Section 512(g)(1). YouTube doesn’t need that limitation on liability since it has no obligation to allow users to post videos on its system in the first place. So I completely disagree with your argument that one could read the statute to mean “the DMCA obligates a service provider to put up content even if it doesn’t want to.” No it doesn’t. Not at all. It merely says that the material must be reposted in that window in order to get that limitation on liability. If there’s no liability for taking down materials in the first place, then that limitation isn’t even needed.

Anonymous Coward says:

Fair use is a myth

Fair use is broken the same way patents are: by relying on a judge to determine what is and isn’t valid, an enormous gulf of legal uncertainty is created. And when there is legal uncertainty, there is an opportunity for the weak to be oppressed by the strong.

Fair use needs reform. Either remove it entirely or codify it, but don’t leave us with this ambiguity that extends from mere references to the sum total of 99% of a target work.

That Anonymous Coward (profile) says:

Re: Re:

Normal people would think so, but then the law is so poorly written and not actually enforced on corporations we pretty much have to suck it up and accept it or build a better service… that will need 15 rounds of funding just to hold off the pointless lawsuits designed to kill this new ‘Boston Strangler’ out to destroy the media cartels.

That Anonymous Coward (profile) says:

If you haven't been paying attention...

After the failure to get the Government to give the content cartels super special rights to control everything that happens they have been quietly trying other things.

Now we have corporations making deals that can ignore the law.

We protect UMG material and ignore the process because UMG doesn’t believe in the law when they don’t like it.

We get to send special notices of strikes and threaten consumers internet connections based on allegations made by another company with a track record of making false reports.

We get hand outs from the taxpayers because our industries that drive the economy and make billions can’t pay for themselves.

We dislike tech that might force the monopoly to evolve so we fight to hold back progress for everyone because the future is scary.

Imagine what we could have today if the cartels were forced to evolve to a changing market like every other company…

junkyardmagic says:

Not sure if we can totally blame YouTube. It seems more like the colatoral you get when rights owners are allowed to set the practicality of how there work is used. As part of the wider contact that YouTube/universal entered into, universal managed to dump the fair use provision. Think about locked down e-readers that don’t allow you to make copies of public domain works. Which is of course one of the reasons that legacy companies should nit be allowed unfettered access to the legislative process

Anonymous Coward says:

It is time to campaign for fixed IP addresses for fixed domestic Internet connections. This would allow families, friends, and other small groups of people to set up private networks for private communications and sharing. These networks can be protected by public key encryption to identify who is connecting to a private machine.
Such networks are not a replacement for publication services like YouTube, Flikr, and Gmail. It would however make it easier to keep separate private and limited communications from publication for public consumption.
Small world models suggest that such networks can achieve a large coverage with low numbers of relays between machines.
However I can see the content Industries and governments fighting such networks, as they are much more difficult to monitor and censor., as the central choke points are removed, including DNS, as for private connections IP addresses can be exchanged and put in the hosts file.

ByteMaster (profile) says:

NewTube

It’s obvious YouTube has been compromised. We need a new one. So maybe not “NewTube”… but what is going to be the “next” YouTube and how are we going to prevent the (c) industry to get a little bit too friendly with them?

LiveLeak? DailyMotion? Any suggestions?

Don’t look at Kim Dotcom; he’s also of the here’s-an-API-and-delete-what-you-want-and-if-it-turns-out-to-be-wrong-there-is-no-penalty-whatsoever variety.

nasch (profile) says:

Re: NewTube

what is going to be the “next” YouTube and how are we going to prevent the (c) industry to get a little bit too friendly with them?

I don’t think that goal is likely or necessary. I think there will be a continual waxing and waning. The next big site will then turn into either the next YouTube (on the content industry’s side) or the next Veoh (sued into oblivion). Then, repeat.

Anonymous Coward says:

Surprise. Surprise. Mike ran away and sent in the B-team. Shocker. You didn’t address the “too much” language and you know it. It’s a simple point, and you could have admitted I had a point. Yet you’re too dishonest to even admit a minor point on a nonissue. That’s how fake and desperate you are. It’s truly amazing. It’s what keeps me coming back for more.

Anonymous Coward says:

Poor little Mike. Can’t even provide a link to the post where he supposedly answered my question. LOL! Same old bullshit routine. When he knows I’ve got him, he gets really mad and then demands that he’s answered the question. When asked to repeat the answer or link to it, he runs away. He never just answers the question. The dishonesty and desperation keep me coming back for more. I love this place. I never imagined that so great of a douchebag could even exist. It’s AWESOME fun. Thanks, Mikey. The laughs are priceless.

trlkly says:

Why is it that the most moronic are the ones with the stupid opinions?

No, YouTube isn’t obligate to post videos. However, a contract saying that YouTube can’t post the videos is unenforceable. YouTube has the choice not to put up the videos, but the rights holder DOES NOT have the right to compel YouTube not to put them up. A contract that violates a provision of a law cannot be enforced.

And I’m pretty sure YouTube knows this. They are just extremely lawsuit phobic right now. They need to get to a better place both in finances and the market so that they have the leverage to pull this off. They need to make it where it would cost most companies too much in lost revenue to sue them.

In the meantime, this is why I tell people to adblock YouTube. Either stand up for our rights, or lose revenue. If enough people did this, YouTube would have no choice but to do the right thing. But, currently, apparently enough people don’t care to make it worthwhile monetarily.

Angelo says:

YOUTUBE DIRTY PRACTICES

There is PORN on youtube (if you know how to find it).
Example, watch “chronicles of a french family”.
Yet they won’t allow other users to upload much much more mild stuff (which doesn’t even show penetration) saying that it violates the communities guidelines….
They are full of shit. It’s obvious that they get paid from the uploaders of certain vids, while systematically take down the average Joe without allowing any deal with Joe…
Motherfuckers.

PaulT (profile) says:

Re: YOUTUBE DIRTY PRACTICES

“Example, watch “chronicles of a french family”.”

This film? Sorry if your prudish nature stops you from enjoying legitimate arthouse cinema

http://www.imdb.com/title/tt1753584/?ref_=fn_al_tt_1

Did you try reporting the video to bring it to their attention, or is whining anonymously on other sites the extent of your effort?

Plus, why do you use them if their upload policies offend you so much?They’re free to police their own platform however they wish. Competitors exist if you don’t like how they do it.

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