Fair Use Continues To Pay The Price For YouTube's Direct Takedown Deal With Universal Music Group

from the please-file-counter-notice-in-nearest-recycle-bin dept

… And so, undeterred by technological advancements they both feared and misunderstood, the major labels continued their quest to “disrupt” fair use and further dwindle into irrelevance. [If you feel you’re missing the first half of that sentence, these two posts will help you out.]

As noted recently, Soundcloud has given Universal Music Group the power to directly take down content, bypassing the site’s internal takedown process as well as the few remedies it offers users who wish to dispute deletions. YouTube has also given UMG this same level of access, again bypassing the normal notice and takedown system.

While sites may claim (as Soundcloud did) that they need to give powerful rights holders direct access in order to comply with the DMCA, this simply isn’t true. Utilizing the normal notice-and-takedown system would be more than adequate. The only thing giving a label direct access does is increase the amount of abuse.

It’s long been noted that the DMCA takedown process tends to encourage rights holders to disregard fair use and fire off notices. The toothless “perjury” language included at the bottom of every takedown notice is almost never enforced, making false or bad claims painless for those sending takedowns.

UMG, with its direct access, certainly isn’t going to consider fair use when it starts pulling the plug on content, as one YouTube remix artist discovered. Elisa Kreisinger has been remixing cultural touchstones for years. This video — one that never even made it past YouTube’s upload process — was no different.

Last August, I saw Jay Z’s HBO mini-documentary commemorating his 6-hour “unprecedented performance experience” of “Picasso Baby” at Pace Gallery. The movie was ripe for remixing: Within the first minute, Jay Z reflects on the similarities between performance art and his usual concert performances, arguing that art galleries have separated art from mass culture, presumably unintentionally.

With one simple twist, I recontextualized select scenes of his performance and set it to Taylor Swift’s “22.” The remix illustrates how both Jay Z and Swift use their status as outsiders to relate to audiences despite being very much insiders. […] I uploaded the mashup to YouTube on Aug. 5, 2013, and it was immediately blocked globally. Ten months later, I finally uncovered the reason.

The reason was simply this: where fair use could be reasonably argued, UMG (and its bots/lawyers) saw nothing more than two of its videos being “stolen.”

It turns out no defense would have revived my video. YouTube had cut a private deal that gave Universal Music Group the power to take down any video, even those videos (like mine and countless others, including creators as diverse as Patrick McKay and Megaupload) that didn’t require Universal’s permission in the first place.

The only plus side was that’s UMG’s deletion didn’t result in a strike against Kreisinger’s account. But that’s of little comfort when fair use is steamrolled by “contractual obligations” YouTube (or Soundcloud) really don’t need to have in place to stay compliant with the DMCA.

When fair use gets damaged, so does free speech.

Fair use prevents rightsholders from silencing critics with the threat of a copyright infringement lawsuit.   By giving UMG the ability to take down videos that use their content regardless of fair use, YouTube has given UMG sweeping power to control what is – and is not – said about UMG and UMG artists. UMG should not be asking for this kind of power, and YouTube should not be granting it.

Labels and copyright industry lobbyists love to call these sorts of deals “voluntary.” But they aren’t. They’re coercive. Lobbyists lean on politicians and politicians lean on internet services to do more to help out struggling, billion-dollar industries. Rather than see IP laws get any worse (or target them any more specifically), they comply with increasingly ridiculous demands. And the users pay the price by having their uploads deleted, their accounts closed and their mouths shut — all without any genuine level of recourse.

Filed Under: , , , , ,
Companies: google, universal music, youtube

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Fair Use Continues To Pay The Price For YouTube's Direct Takedown Deal With Universal Music Group”

Subscribe: RSS Leave a comment
61 Comments
Anonymous Coward says:

While sites may claim (as Soundcloud did) that they need to give powerful rights holders direct access in order to comply with the DMCA, this simply isn’t true.

By the letter of the law such access may not be needed, but big content has the habit of making it too expensive not to give in to their requests by bringing lawsuits until their target goes broke.

Chronno S. Trigger (profile) says:

Re: Re:

Google is the only thing that saved Youtube. Plus the reason that Google is the only thing that saved Youtube is the same reason why nothing else has popped up to replace Youtube.

It’s one thing to provide good service to the entire world. It’s another to comply with overzealous laws and people with more money then God who think only the laws they want apply.

Adrian Lopez says:

Content distribution platforms have become gatekeepers who operate by rules which resemble the law but are, in fact, independent of it. If we are to continue relying on intermediaries like YouTube and Soundcloud for amateur publishing then we need to put a stop to capricious takedown activities masquerading as expressions of the law, protecting those whose fair use or otherwise non-infringing activities are being censored without the benefit of due process.

Let’s not have “copyright according to UMG” become the standard by which service providers determine infringement. Let’s go back to judges and juries deciding on infringement matters and toss this pseudo-copyright crap in the dustbin where it belongs.

Anonymous Coward says:

Another perfect example of this was a video about Frozen by How it Should Have Ended. The end of the video had a clip with people singing parts of Let It Go and HISHE had to reupload the video with a different song so that it wouldn’t be flagged as a performance. It was definitly a case of fair use being trampled.

Adrian Lopez says:

Re: So who gets sued here

It’s not infringement to get someone’s content taken down.

What we need is to make it a tort to make false representations (intentionally or otherwise) about the legal status of a given work, and have it carry penalties high enough to hurt these big companies in cases of willful or negligent takedown demands.

Successful Pro Se Litigant says:

Re: Re: So who gets sued here

Common law fraud or tortious interference with prospective economic advantage (Wikipedia on IWPEA) might do just fine. Here’s what the California civil jury instructions have to say for Negligent Interference with Prospective Economic Relations under CA law:

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] and [name of third party] were in an economic relationship that probably would have resulted in a future economic benefit to [name of plaintiff];
2. That [name of defendant] knew or should have known of this relationship;
3. That [name of defendant] knew or should have known that this relationship would be disrupted if [he/she/it] failed to act with reasonable care;
4. That [name of defendant] failed to act with reasonable care;
5. That [name of defendant] engaged in wrongful conduct through [insert grounds for wrongfulness, e.g., breach of contract with another, misrepresentation, fraud, violation of statute];
6. That the relationship was disrupted;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s wrongful conduct was a substantial factor in causing [name of plaintiff]’s harm.

Since YouTube’s Terms of Service say the service shall be deemed to operate in California and require disputes to be resolved in a Santa Clara County court, you could probably sue the label, arguing that fair use is not an infringement and so the label’s claim of infringement was a misrepresentation, fraud, or violation of the copyright statutes.

Whatever (profile) says:

Okay, let’s look at this one a different way and get you thinking:

Is YouTube bound by the DMCA in all directions? That is to say are they REQUIRED by the law to leave claimed fair use on their site, or are they free as a private company to add and remove videos as they see fit provided they don’t violate the minimum standards of the law itself?

Discuss.

Adrian Lopez says:

Re: Re:

YouTube doesn’t have to allow any videos on its website that it doesn’t wish to carry, but there’s no good reason why they should feel like they need to bend over backwards for copyright holders by allowing them to sidestep the process prescribed by law for taking down infringing content.

If content providers had greater immunity for content posted by their users, do you think they would go quite so far to satisfy the whims of copyright holders? I’m fairly certain they would not.

Quite simply, the law needs to change. Improper takedown requests need to be punished severely, and no content should ever be taken down for copyright infringement without first giving the accused a chance to respond (via the “notice and notice” system Techdirt has previously discussed).

Whatever (profile) says:

Re: Re: Re:

Quite simply, the law needs to change. Improper takedown requests need to be punished severely

You didn’t answer the question though: Why harrass Youtube if they are exceeding what the law requires, and doing more? If you don’t like it, would you consider using a different video site?

Are they within their rights to handle DMCA notices in this manner? Is it legally correct for them to do it this way?

Whatever (profile) says:

Re: Re: Re:2 Re:

Actually you didn’t answer the question, because you still framed your answer with the concept that YouTube is bound or obligated to show your video because of fair use. That is just not the case. YouTube can (and apparently does) choose to remove videos that MAY be fair use, if the rights holder says so. That is above the standard of DMCA, not less, and thus is in compliance.

Remember, DMCA does not bind anyone to run any video.

So, what do you think?

Adrian Lopez says:

Re: Re: Re:5 Re:

Your desire to make some kind of point is getting in the way of your listening. Google is free to run YouTube however it sees fit. They should not, however, be pressured into adopting measures more restrictive than those prescribed by law. Again, there’s no good reason why YouTube should cater to UMG’s whims, and no reason they would do so if it weren’t for the toxic legal environment that is now so prevalent.

Penalize UMG and other copyright holders for taking down or causing to be taken down any non-infringing content, and change the DMCA so that immunity depends not on taking down content upon receiving notice, but on removing it when there’s been no reply from the person accused of infringement (“notice and notice”).

Whatever (profile) says:

Re: Re: Re:6 Re:

. Again, there’s no good reason why YouTube should cater to UMG’s whims, and no reason they would do so if it weren’t for the toxic legal environment that is now so prevalent.

The problem is that the “toxic” legal environment basically comes up when fighting marginal copyright claims and marginal fair use claims. YouTube is not obliged by law to keep standing right on the edge and taking flak from both sides. It’s a losing battle, there is little no upside for them to keep standing there taking it.

So either they have to choose to be on the side of the “it’s all fair use” types who will claim everything as fair use and deal with all the takedown requests and legal actions, or they can make an agreement with UMG and let them decide for themselves, understanding that it’s not legally binding on any other sites. So a video that is removed by request of UMG doesn’t lose it’s potential standing as fair use, it only loses permission to be on YouTube.

The end result is massively less “toxic” legal work, and a better working relationship with companies like UMG that provide much of the most in demand content around.

Penalize UMG and other copyright holders for taking down or causing to be taken down any non-infringing content

why? They are not obliged to provide service for any content, without consideration for DMCA. If YouTube says “no umg backgroud music” it’s not a DMCA issue. It’s a contractual agreement with UMG that makes it so. You can take your fair use video and upload to another streaming site if you like.

change the DMCA so that immunity depends not on taking down content upon receiving notice

DMCA does not require taking down the content on notice. That is YouTube / Google’s choice in how they work with the law to limit what they see as their liability. They could also choose to pass the notice on to poster and give them a reasonable time to answer (probably 24 hours), but instead they choose to avoid any potential issues and take down things they get notified on. This is perhaps as a result of so many of the videos getting posted by anonymous users or people using free or disposible email accounts to post things. It is NOT a requirement of DMCA.

If you are going to rail against the DMCA, I suggest you read the law and understand.

LAB (profile) says:

Re: Re: Re: Re:

You are addressing, what I feel is, the true issue here. Youtube is a private company that can comply with the DMCA however it wants. It exists to make money and it makes more money from UMG content than it does from one remix artist. UMG probably offered a lower licensing rate for the access to the platform. Often the attitude is Youtube is the only platform on earth to post video online which is just not the case. If you are pissed at Youtube’s product and how they operate it, then don’t use it or create something else.

Adrian Lopez says:

Re: Re: Re:2 Re:

If you are pissed at Youtube’s product and how they operate it, then don’t use it or create something else.

In other words, “shut up!” Don’t tell others about how fucked up YouTube and Soundcloud’s policies truly are, don’t try to get them to change those policies, and don’t dare bring up the fact that their actions have nothing at all to do with DMCA compliance.

Whatever (profile) says:

Re: Re: Re:2 Re:

I think it’s the key to the whole thing here. DMCA doesn’t bind them to run a video because it’s legal, they can still as a private company agree to remove all videos with Universal’s material in it, at their discretion.

DMCA is the legal minimum, not a bi-direction binding point.

YouTube may be signing their own death warrant in the court of public opinion. That’s a different issue. But in a legal sense, I can’t see them having an issue as long as there is no provable discrimination.

MrTroy (profile) says:

Re: Re: Re:3 Re:

But in a legal sense, I can’t see them having an issue as long as there is no provable discrimination.

In a legal sense, no. And in a pedantic sense, I can’t see your discussion topic as having any relevance to the discussion of the article, unless it’s an attempt to derail the discussion by setting your own terms for the argument.

You’re more than welcome to carry on your own discussion here, but if you want to talk about the same things as the rest of us, we’ll be waiting in the other comment threads.

Whatever (profile) says:

Re: Re: Re:4 Re:

There is no attempt to derail the discussions. Fair use is nice and all, but an agreement with UMG that says they can take down any video using UMG music without express permission sort of overrides the concept of fair use. Youtube is not bound to provide service to anyone, so claiming fair use is moot if they have an agreement with Universal.

Youtube is not a public utility or public space. They are not bound by law to give you space for a video. So claims of fair use are nice, but YouTube is not obligated by law to consider them.

So yeah, it’s sort of key to the discussion.

That One Guy (profile) says:

Re: Re: Re:2 Re:

Just to get the obvious bit out of the way, YT ‘takedowns’ and DMCA takedown are not the same thing. When a company does what’s being discussed here, they are in no way involving the DMCA, they are simply saying ‘This is infringing’, and YT is taking it down, taking them completely at their word, and quite often punishing those claimed to be infringing, with no ability for the one affected to respond or counter the accusation.

There are no limits, absolutely no punishments for a false claim(in that at least it matches the DMCA), they can pretty much block or pull anything they feel like, entirely at their whim.

Now, can a private company do what they please, assuming they follow the law(and again, YT’s actions here have nothing to do with the law)? Absolutely. However, there’s a vast difference between can, and should, and in your defense of all things copyright, you seem to be defending the idea that Fair Use is acceptable ‘collateral damage’, just an ‘unfortunate cost’ of giving companies like UMG unchecked ability to pull whatever they please, to ‘protect’ their copyrights.

If you are pissed at Youtube’s product and how they operate it, then don’t use it or create something else.

Or, and this is crazy I know, but hear me out, maybe if people point out when a company is doing something wrong, the problem can be addressed and hopefully fixed. The idea of ‘If you don’t like it, just use something else(and good luck making a site that competes with YT without it being sued into oblivion)’, fixes all of nothing, and is downright dismissive of any concerns brought up.

‘Don’t like it, don’t use it’ is great if you don’t want to fix the problem, but for getting things fixed, it’s pretty much useless. It also assumes viable alternatives, which are currently few and far between in the video hosting arena.

MrTroy (profile) says:

Re: Re: Re:3 Re:

If you are pissed at Youtube’s product and how they operate it, then don’t use it or create something else.

Or, and this is crazy I know, but hear me out, maybe if people point out when a company is doing something wrong, the problem can be addressed and hopefully fixed. The idea of ‘If you don’t like it, just use something else(and good luck making a site that competes with YT without it being sued into oblivion)’, fixes all of nothing, and is downright dismissive of any concerns brought up.

‘Don’t like it, don’t use it’ is great if you don’t want to fix the problem, but for getting things fixed, it’s pretty much useless. It also assumes viable alternatives, which are currently few and far between in the video hosting arena.

Also, and this one might be a bit radical, if you are pissed at us talking particular companies’ services and offering our opinion on how we would prefer them to act, then don’t listen and go bother someone else.

Whatever (profile) says:

Re: Re: Re:4 Re:

if you are pissed at us talking particular companies’ services and offering our opinion on how we would prefer them to act, then don’t listen and go bother someone else.

The point is people aren’t talking about offering up suggestions to “make it better”, they are generally suggesting legal recourse and trying to force YouTube to follow non-existent laws. Youtube is well within their right to refuse service to anyone, for any reason, provided it is not done in a fashion that discriminates against anyone for race, creed, color, religion, sexual orientation, and all those other personal issues. If they say “no UMG music in videos” then that is that. No legal recourse, that is it. It’s not a fair use issue, so telling them to handle it under fair use to to respect fair use won’t help.

So if you don’t like their choices as a company, then move along, or set up your picket signs outside their door until the change it.

nasch (profile) says:

Re: Re: Re: Re:


You didn’t answer the question though: Why harrass Youtube if they are exceeding what the law requires, and doing more?

That’s a stupid question that presupposes (or at least strongly implies) that anything that moves in the direction of greater copyright enforcement and less opportunity to exercise fair use rights is a good thing, and therefore shouldn’t be criticized.

tracyanne (profile) says:

Re: we can't get copyrighted stuff free

First the fact that it’s copyrighted is no guarantee the creator, or the copyright holder can get money for it, and second ever heard of Open Source Software, it’s all copyrighted, it’s also free of charge, and Free. So yes you can get copyrighted stuff free of charge legally.

In addition, every time a creator puts their creative works on line for down load, while not requiring payment, that too is copyrighted stuff that is available free of charge. Lots of people do it, check out anything that is licensed under a Creative Common license.

Laroquod (profile) says:

Re: Re: we can't get copyrighted stuff free

While I agree with your general point, it simply isn’t true that “every time a creator puts their creative works on line for down load, while not requiring payment, that too is copyrighted stuff that is available free”.

A significant and increasing number of creators are releasing their works directly into the Public Domain (which you can accomplish by using the Creative Commons non-licence CC0). Unlike every other licence inluding all other CC licences, releasing into the Public Domain is not a permissive copyright licence, but rather a form of renouncing copyright altogether, obviating any legal requirement for any licensing of that work, ever.

Laroquod (profile) says:

Re: Re:

Anyone who thinks people wanting to remix works in order to produce a commentary on them is about ‘getting copyright stuff free’ is really not thinking very clearly.

Furthermore, anyone who thinks people WATCH remix works because they want to see the original ‘copyright stuff free’ has got to have some form of brain damage going on…

nasch (profile) says:

Re: Re: Re: Re:

Yes, and the three times per year that it happens will be “harmed”.

Trying to justify a all you can eat for free buffet with exceptional cases isn’t a very compelling argument.

I can’t even make sense of this comment. Are you saying remixes are extremely rare, or are extremely rarely taken down for copyright reasons? Are you saying people who want to protect fair use are just using that as cover for trying to “get everything for free”?

Digger says:

Sue UMG under anti-hacking laws.

Time to apply the Ricoh act to every member of the MPAA / RIAA and take them to court for falsifying official statements.

Every time they use one of those programs, or submit a false DMCA claim, that’s another falsified legal document.

Send every one of those scum sucking lawyers, the boards of directors, the officers of all of those corporations to prison for those violations.

Let them rot in gitmo for life.

That One Guy (profile) says:

Question

The toothless “perjury” language included at the bottom of every takedown notice is almost never enforced, making false or bad claims painless for those sending takedowns.

Can anyone list an example of that ‘penalty’ ever being enforced, in particular against a company? Because I’m not sure if I’ve ever seen that happen, making the ‘almost’ in that sentence one word too many to be accurate.

donna samuel says:

Smooth Jazzshow - Rod Lucas's hobby

Quit ——- around with the coolest jazz show

on You Tube yet!!!!!!!!! Jealousy is your problem

he is doing nothing wrong but kickin out smooth jazz

to listeners who love him. Maybe I should band You

period and just boycott the use of YouTube

Then you haters, will take another look at the way

you guys do business………….. We can do without

you and I will if you don’t leave Rod Lucas alone…

I will do just that ——-.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...