Fair Use At Risk When Private Companies Get To Make The Decision For Us

from the fair-use-in-the-age-of-the-cloud dept

We talk a lot about how fair use is under attack these days, and I’ve discussed in the past my concerns about freedom of expression when we always have a company (or a few companies) standing in the middle of our decisions on whether or not we can speak. NiemanLabs has a great example of where this becomes problematic in a story about how SoundCloud will not even consider fair use in making decisions about whether or not to take down content, and how that’s harming journalism:

Here?s a wakeup call to audio creators everywhere: SoundCloud does not recognize your fair use rights under U.S. copyright law. If your content contains any copyrighted material to which you haven?t secured the rights ? even if you have a valid fair use claim ? SoundCloud may take it down at any time.

That?s exactly what happened to a former student of mine, and his experience should serve as a warning to the growing number of news organizations (including several that I work with) that use SoundCloud to host podcasts and other audio content.

Journalism as we know it could not exist without fair use, so it?s possible SoundCloud may not be a viable tool for the field. Imagine trying to do a story about the ?Blurred Lines? lawsuit without playing copyrighted clips from the songs involved.

The article goes on to discuss an interesting journalism project that used a very brief clip of copyrighted music in a way that almost certainly was fair use. SoundCloud took it down. When pressed on this, the company eventually admitted that it refuses to take fair use into account, in part because fair use is only in the US:

We understand that US copyright law includes a doctrine of fair use. However, these rules are limited, difficult to apply outside of a court of law, and in any event do not necessarily apply outside of the United States. As SoundCloud is a global platform, we expect all of our creators to respect copyright law, and the rights of copyright owners, on a global basis.

As the writer of the article, Adam Ragusea, points out, this should be a major concern for any journalists using Soundcloud. And that includes us at Techdirt — as we use SoundCloud to host our podcast. But the fact that the company might not even allow us to make use of our fair use rights — the same rights that the Supreme Court has said are essential for protecting the First Amendment — is a major concern, and one that has me thinking we should be looking for other platforms.

But, even then, we would most likely face the exact same situation. Any other platform will be under pressure from any sort of DMCA notice system as well. And while they could stand up for their users, many don’t want to take on the liability risk. And thus, we run a serious risk of losing a key component of free expression.

And, honestly, the problem is only partially the companies like SoundCloud. The entire legal system is designed to make this sort of response the only real choice they have. With fair use being only truly available in a few countries, it’s difficult to operate a global platform. This is why if we’re going to put copyright into international trade agreements fair use needs to be included, otherwise we risk losing it back here in the US as well. But when you combine that situation with copyright law in which statutory damages are insane, and where the DMCA requires you to shoot first and ask questions later, it is way too easy for companies like SoundCloud to just throw up their hands and say this isn’t worth dealing with.

Even companies that do try to take fair use into account — like YouTube — all too frequently fail to do a good job of considering fair use, leading to perfectly legitimate content disappearing, with no real recourse for the creators. This is why, beyond fair use, it seems like we need much stronger safe harbors for intermediaries like SoundCloud. It works with Section 230 of the CDA, in which the rule is pretty ironclad: the service provider should never be seen as legally liable for the content its users create. For fair use to thrive, copyright law requires a similarly ironclad safe harbor. This doesn’t — as some will inevitably claim — mean that there is no recourse over infringement. There absolutely is. The copyright holder still has every right to target the actual end user, and that person can then stand up for their own fair use rights, which is only proper.

But under the current system, end users don’t even have the chance to stand up for their own fair use/free speech rights, because third-party platforms like SoundCloud get to make the final decision for them — and with all of the liability incentives stacked against them, free speech doesn’t have a chance.

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Companies: soundcloud, youtube

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Comments on “Fair Use At Risk When Private Companies Get To Make The Decision For Us”

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43 Comments
Jack says:

Re: Fair use is not at risk

No – this is fundamentally wrong. Private companies are under no obligation whatsoever to allow you to say whatever you want on their dime. Also, this is a private company and they do not have to allow anything on their system they don’t want.

What SoundCloud is doing shows a complete lack of spine and should be called out – there is absolutely no risk to 1A.

Zeno of elea says:

Re: Fair use is not at risk

That’s actually a fundamental misinterpretation of the first amendment. The first amendment protects against the government squashing free and open speech especially controversial speech. Private companies, organizations, and individuals can allow or prohibit and speech they want to on their site / platform / premises. That does not impede a person’s right to free speech as you can choose to not do business with that entity and speak out against it

That being said I do think that SoundCloud made a horrible error in judgement by not allowing fair use in a podcast as news and talk stations post to SoundCloud and more likely than not have some sort of issue like that.

Beech says:

So if you put up a sound file it has to comply with copyright laws from EVERY country in which it could be viewed? What about non-copyright related laws? If a Florida town with 30 residents and a goat as mayor makes a crazy law banning audio over the internet, does that mean Soundcloud will shut down every recording? If i did a podcast referencing the king of Singapore negatively, it could be removed?

Anonymous Coward says:

Re: Re: Re:

…a goat as mayor…

I thought I had candidates that sucked!

On second thought maybe this would be better. At least it couldn’t be worse than what I have now. And maybe the current politicians would finally get the message that they’re doing it wrong when the voters favor an animal over them!

Anonymous Coward says:

This is why, beyond fair use, it seems like we need much stronger safe harbors for intermediaries like SoundCloud. It works with Section 230 of the CDA, in which the rule is pretty ironclad: the service provider should never be seen as legally liable for the content its users create. For fair use to thrive, copyright law requires a similarly ironclad safe harbor

But the DMCA, with its counter-notice provision, is a perfectly valid safe harbor. SoundCloud simply decides not to use it and to just take down without allowing a counter-notice.

They’d probably use the same excuse anyway: that any safe harbor only applies in the US.

Mason Wheeler (profile) says:

Imagine trying to do a story about the “Blurred Lines” lawsuit without playing copyrighted clips from the songs involved.

Techdirt did a story about this lawsuit (more than one, IIRC) without feeling the need to include any sound clips, and the coverage was quite informative. Why exactly is playing the song necessary for talking about legal issues involving the song?

Anonymous Coward says:

"no real recourse for the creators"?????

First: WHO CARES? Other times you say that creators have no rights! That everyone should be free to “share” and greasy blob Dotcom to monetize!

How I wish that Techdirt would state a firm position on whether creators have rights to THEIR STUFF. You keep having it both ways at once.

Second: by “creators” there you actually mean second-handers who are using the content of some prior.

Pragmatic says:

Re: "no real recourse for the creators"?????

At no time has this ever been stated, so drop the straw man, nobody is falling for it.

1. Creators have a multiplicity of options for monetizing the content they create but most of them don’t seem to know what those are. Start here: https://www.techdirt.com/blog/?tag=business+models

2. Copyright DOES NOT and NEVER has granted OWNERSHIP rights to content. That you can’t or won’t accept this is and should always be YOUR problem, not ours. Again, for the umpteenth time: copyright is a TEMPORARY MONOPOLY PRIVILEGE. That is why the terms are limited (at least in theory), after which the content enters the public domain.

3. Are you kiddin’ me? NOBODY creates cultural items, e.g. books, songs, or music, etc., in a vacuum. Not even you. So basically ALL creators are using the content of some prior whether you are willing to accept that or not.

Now give it a rest, already. It’s impossible to have a civil conversation about this as it is because you can’t or won’t accept the facts as they are.

Anonymous Coward says:

"no real recourse for the creators"?????

First: WHO CARES? Other times you say that creators have no rights! That everyone should be free to “share” and greasy blob Dotcom to monetize!

How I wish that Techdirt would state a firm position on whether creators have rights to THEIR STUFF. You keep having it both ways at once.

Second: by “creators” there you actually mean second-handers who are using the content of some prior.

James Burkhardt (profile) says:

Re: "no real recourse for the creators"?????

Can you link me to an article where Mike has stated creator’s have no rights? I’ve never seen it, but you clearly have so you should have an idea of the subject of the article, and should be able to find it.

And…hmm. you seem to indicate with that second part that if you make use of fair use or the public domain, that you immediately can not be a creator. That all the additional content, nuance, and culture you create disappears as soon as fair use or the public domain come into play. Sad to hear the creators of Airplane weren’t creators. Sad to hear that Disney animators creating what is now the definitive imagery for many classic fables weren’t creating anything. Very sorry to hear the following list of musicians aren’t considered creators because they all made use of Pachabels canon in D minor:

Vitamin C (Friends Forever)
Green Day (“Basket Case”)
Coven (“One Tin Soldier”)
Spiritualized (“Ladies and Gentlemen We Are Floating in Space”)
Belle and Sebastian (“Get Me Away From Here, I’m Dying”)
Aerosmith (“Cryin'”)
Creed (“One Last Breath”)
Dire Straits (“Tunnel of Love”)
The Vandals (“People That Are Going To Hell”)
DragonForce (“Valley of the Damned”)
Augustana (“Boston”)
Blues Traveler (“Hook”
The Village People and Pet Shop Boys (“Go West”)
Catch 22 and Streetlight Manifesto (“On & On & On”)
Goldie Lookin’ Chain (“Your Missus Is A Nutter”)
Lionel Richie (“Say You, Say Me”)
Scatman John (“Scatman’s World”)
LM.C (“Boys & Girls”)
Delerium (“Paris”)
Bob James (“In the Garden”)
Oasis (“Don’t Look Back in Anger”)
Bee Gees (“Spicks and Specks”)
Kylie Minogue (“I Should Be So Lucky”)
McFly (“Memory Lane”)
The Kings Dead (“A Symphony at the Wake”)
Phillip Morris (“Level 2” from The Adventures of Lomax game)
The Legendary Pink Dots (“A Triple Moon Salute”)
The Beatles (“Let It Be”)

Also, the logical conclusions of your arguements, as soon as you work with content licenced from another person, you are a second-hander. Meaning the team that worked on Kingdom Hearts weren’t creators, despite creating new stories, new characters, and an entirely new mythos.

Creator. You keep using that word. I don’t think it means what you think it means.

Anonymous Coward says:

Re: Re: "no real recourse for the creators"?????

That list is missing “oh lord, why lord, prayer” by Parliament. The one song that doesn’t just approximate “Canon”, but uses it wholesale. Great song too.
Though your point is moot as “canon” was written in 1694, so not only is it not under copyright, it’s older than copyright by 16 years.

Anonymous Coward says:

Re: "no real recourse for the creators"?????

When its just yours, you have all the power and control in the world. When its distributed, you’ve made a deliberate move to try to extract value of that, in exchange for a loss of control. Not legally speaking specifically, but realistically. You can try to stop people from doing things, but there’s only so much you can do.

On a more serious note, shut up. As much as I hate the state of current copyright law, I at least bother to understand it isn’t black and white. I know you don’t like thinking in your day to day life, but this requires this fascinating thing called nuance.

Somebody Who Doesn't Like Silos says:

You Reap What You Sow

And that includes us at Techdirt — as we use SoundCloud to host our podcast.

And whose fault is that?

I mean, seriously. A podcast is a directory of files. Most are MP3 files, which you get by using any number of FOSS audio recording programs. One will be an XML file (RSS or Atom), which admittedly requires you to either work with nasty angle brackets or find some editor that works directly with that file format. Why in the name of $DEITY would you have any third party service involved, beyond whatever you are using for hosting this very site?

Similarly, you vent about ad network behavior. TechDirt is *more* than big enough to source its own ads, bypassing any ad network. If you don’t like ad networks, why are you using them?

Now, I realize that my recommendations violate hipster aesthetic, where you have to use some graphically-intense Web site (e.g., SoundCloud), complete with unpleasant terms of service, rather than just using a program on your own machine.

If you don’t like the behavior of silos, stop using the silos.

James Burkhardt (profile) says:

Re: You Reap What You Sow

Why in the name of $DEITY would you have any third party service involved, beyond whatever you are using for hosting this very site?

You mean like reliability of speed? Or the fact that Techdirt can’t get bandwidth at the discount a site like SoundCloud can? Cost/Benefit analysis man! I am sure that this news is bringing new information to that analysis. But before the ‘we don’t support fair use’ term (that probably isn’t expressly stated in the contract) was known, Cost/Benefit probably showed that SoundCloud was better then hosting the podcast themselves. And even if bandwidth and reliability weren’t concerns for Techdirt, that doesn’t mean everyone making use of fair use on SoundCloud has the resources to host the podcast on their own.

Similarly, you vent about ad network behavior. TechDirt is *more* than big enough to source its own ads, bypassing any ad network. If you don’t like ad networks, why are you using them?

Well, first of all, Their complaints are mostly about the ad networks they got rid of. But lets set aside the fact that they are a news organization and they should point out these kinds of problems even if they had completely sourced their own ads. We run in, again, to that old fish, the Cost/Benefit analysis. Your analysis assumes that sourcing their own banner ads has no significant added cost, and that the price they could command for ads is comparable to the revenue they could get via the ad networks. However, sourcing ads is quite potentially another employee to Techdirt, And there is no guarantee that companies will want to directly advertise with a single site or pay what the ad networks do (rather than spend that extra money on ad networks that would distribute the ad to a wider audience). All of this is rather moot though, as it is quite clear they already do source ads (just not banner ads) directly. Sponsored posts, Techdirt deals, they are experiementing with the very thing you are suggesting. And finally, again, that isn’t an option for everyone. And because Techdirt is a news organization, their “complaints” are both advocacy and informative for those who may not have the ability to avoid the silos.

Leigh Beadon (profile) says:

Re: You Reap What You Sow

Firstly, we’re a very small team with a large number of projects. It’s not easy for us to just take on the management of entire new things on a whim, no matter how simple those things might seem to you.

Secondly, the internet ad market is not as easy or as simple as you presume. Try selling ads for a blog of this size – while keeping a commitment to quality ads that don’t piss of your readers and are never deceptive – and you’ll see that.

Thirdly, the fact that we use third-party services has nothing to do with a “hipster aesthetic” (honestly… look at our still-not-updated site design… how hip are we right now?) but that we actually believe that sort of networking and work-distribution is one of the greatest things about the internet, and an extremely powerful way to fuel innovation and growth. We chose SoundCloud because we like a whole lot of what that company does and stands for and found they offered an clean and easy out-of-the-box solution for our needs — if we feel we really have to re-think that, we will.

Anonymous Coward says:

Re: Re: You Reap What You Sow

look at our still-not-updated site design… how hip are we right now?

… and just what is wrong with the design you have?

Myself, I prefer the simple and functional. There are websites I decline to visit because they demand plugins or Javascript in order to display even their basic content and navigation displays. I don’t need to download 30MB of images in order to read text news. And on a slow connection, I cannot do that.

You CAN be “too hip”.

Mike Masnick (profile) says:

Re: You Reap What You Sow

I mean, seriously. A podcast is a directory of files. Most are MP3 files, which you get by using any number of FOSS audio recording programs. One will be an XML file (RSS or Atom), which admittedly requires you to either work with nasty angle brackets or find some editor that works directly with that file format. Why in the name of $DEITY would you have any third party service involved, beyond whatever you are using for hosting this very site?

Many reasons. One is bandwidth. Bandwidth is still costly, but Soundcloud can buy it at much better rates than we can afford. Two is convenience. Doing it yourself is a lot of work and that’s work that takes away from other, more important, things we’re doing. Soundcloud just makes it a lot easier and we find that worth it. If we had to do it ourselves and pay for the bandwidth at our own costs we wouldn’t be doing it. It’s that simple.

Similarly, you vent about ad network behavior. TechDirt is more than big enough to source its own ads, bypassing any ad network. If you don’t like ad networks, why are you using them?

Uh, I don’t know what to tell you other than you’re wrong. We’re not “more than big enough.” We’re not even big enough. We’ve tried. We can’t source nearly enough ads on our own to keep this site running. Not even close. Your assumptions and/or knowledge about how this works are off by a large amount.

Now, I realize that my recommendations violate hipster aesthetic, where you have to use some graphically-intense Web site (e.g., SoundCloud), complete with unpleasant terms of service, rather than just using a program on your own machine.

You really think we care about a “hipster aesthetic”? Have you looked at our site?

If you don’t like the behavior of silos, stop using the silos.

It’s not silos. But we live in a connected world and its a world where we believe that specialization does matter, and often it makes sense to work with those who specialize in things (comparative advantage and all that). But, as part of that, we should also speak up when we think they can do a better job.

diy4lyfe says:

Re: Re: You Reap What You Sow

There is no excuse for using Soundcloud. None. What you are saying here is delusional.

“One is bandwidth. Bandwidth is still costly”

As someone intimately familiar with the hosting business this is not true, not remotely. Especially for your volume.

“Two is convenience”

Delusional. Having a third party control a major function of your product is not convenient. Or quicker. Short term thinking at its worst.

“If we had to do it ourselves and pay for the bandwidth at our own costs we wouldn’t be doing it. It’s that simple.”

Then stop doing it. Why was it even on the table? Out of curiosity, how much do you pay for your studio space to record? How much does the person who has been doing the mixing (and the reason I rarely listen due to absurdly loud [and bad] bumper music) charge? Why are these costs more acceptable than bandwidth and an rss feeds for dummies book? Why don’t you care about freedom?

I won’t even attempt to get into the moral bankruptness of marketing products you have no connection to whatsoever.

If you need Squarespace, you shouldn’t be building websites.

If you need Soundcloud, you shouldn’t be distributing audio.

This is a new world where content gets created without thrid party overloards. Join us.

*loyal reader for over 10 years, who values your service greatly

Leigh Beadon (profile) says:

Re: Re: Re: You Reap What You Sow

*loyal reader for over 10 years, who values your service greatly

Then perhaps you could value the insight of the people who run the blog, including the person who has been running it for over 10 years, instead of telling us all our reasons are stupid and essentially accusing us of lying.

If you need Squarespace, you shouldn’t be building websites.

If you need Soundcloud, you shouldn’t be distributing audio.

This is a new world where content gets created without thrid party overloards. Join us.

If you think any of those things are true, then you’re living in a fantasy-land and have no idea how the modern web works.

Mike Masnick (profile) says:

Re: Re: Re: You Reap What You Sow

As someone intimately familiar with the hosting business this is not true, not remotely. Especially for your volume.

Don’t know what to tell you other than that you are wrong.

Delusional. Having a third party control a major function of your product is not convenient. Or quicker. Short term thinking at its worst.

It is not “controlling” a major part of our product. We are using it for hosting and bandwidth. If it wasn’t them, it would be another company. Even if we were doing it “ourselves” it would still involve a third party hosting company/data center somewhere. Soundcloud is like that, but also has some useful features and lower prices. Most people like it.

Then stop doing it.

Many people like the podcast. We should stop doing it because one person doesn’t like the fact that we use a third party service that many others like? Really?

Why don’t you care about freedom?

Really? It’s tough to take you seriously if you say that.

This is a new world where content gets created without thrid party overloards. Join us.

There are always third parties. There are data centers and bandwidth providers. There are always other tools. The idea that it’s just you and the end user is not a realistic scenario in all but the most convoluted of circumstances.

I know, I know, next time we’ll host the podcast on a server in my house and give you an FTP account to log in and download it… but, oh, crap, that would involve both your “third party” ISP and mine. Well, darn. We must hate freedom.

Ninja (profile) says:

Re: Re: You Reap What You Sow

Have you thought of setting up torrents with the audio just in case? I mean you can run them from a home computer, when there’s a critical mass you can probably plug out and it will fly alone.

Reading this article at every point I thought of a bittorrent like decentralized mechanism. I mean you can already stream via torrent and the speeds are getting higher so you would offload a lot of costs from your servers and most people wouldn’t mind. I don’t mind giving bandwidth to something I am making use of.

Anonymous Coward says:

I would like to say that federated services are the answer. but they require that domestic customers can obtain fixed IP addresses, and probably that the local geeks run Usenet like services, and provide a friendly font end to such services for their local community. There is a definite requirement for millions of nodes, just to prevent the legacy industry picking them off one by one as they are doing to usenet services.

John Fenderson (profile) says:

Re: Re:

Nobody said otherwise. However, when companies take the stance that Soundcloud has taken (and that they are fully within their rights to do), everyone should be made aware of that so that they can make an informed choice about what service they want to use. Also, at the very least, so they won’t be taken by surprise when the company hoses them.

John85851 (profile) says:

Who's laws do they follow?

Isn’t SoundCloud located in the US? And if so, doesn’t that mean they have to follow all US laws?

But if they don’t want to apply the US’ fair-use laws, does that mean they can pick and choose which laws to follow? Suppose some country gives them tons of money to block another country’s feeds? As a private company, is it still their right to do as they please?

But consumers have the right to take their business elsewhere.

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