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.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."
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.
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.
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Filed Under: copyright, dmca, elisa kreisnger, fair use, takedowns, youtube
Companies: google, universal music, youtube
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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.
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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.
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MegaUpload did it.
HotFile did it.
And it was abused at every possible turn.
The law is so unbelievably unbalanced, and favors those with enough money to just demand their way or else... even when they are in the wrong.
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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.
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where anonymous when you need them?
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So who gets sued here
Just curious
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Re: So who gets sued here
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.
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Re: Re: So who gets sued here
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.
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I still think that the penalty should be the loss of the copyright that was abused into the public domain, with some suitable (read: low) bar to qualify for the penalty.
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fugitive saved act
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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.
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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).
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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?
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Remember, DMCA does not bind anyone to run any video.
So, what do you think?
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So, with that in mind, do you want to take another crack at it?
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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").
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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.
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Yes, it does require taking down (or blocking).
http://en.wikipedia.org/wiki/DMCA_takedown_notice#Notice_from_copyright_owner
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If you're going to defend it, I suggest you do the same.
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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.
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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.
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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.
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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.
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Is there anyone arguing otherwise, or have you constructed another straw man for your collection?
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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.
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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.
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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.
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Who is doing that?
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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.
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Yeah and....*sniff*... we can't get copyrighted stuff free.
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we can't get copyrighted stuff free
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.
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Re: we can't get copyrighted stuff 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.
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Free doesn't mean illegal.
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> Free doesn't mean illegal.
Even more. GET and ILLEGAL have nothing to do with each other, not according to copyright. It's PUBLISH which might be illegal.
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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...
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Trying to justify a all you can eat for free buffet with exceptional cases isn't a very compelling argument.
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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"?
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Sue UMG under anti-hacking laws.
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.
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Re: Sue UMG under anti-hacking laws.
Does that involve forcing them to purchase overpriced copiers and printers?
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Re: Sue UMG under anti-hacking laws.
They have managed to convince too many people that they are eunuch and indispensable.
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Question
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.
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Re: Question
it is a bullshit 'safeguard' with no teeth...
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Re: Question
individuals don't count as they don't have the same access as the companies do
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UMG/YT takedowns
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Smoothjazzshow - Rod Lucas's hobby
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Smooth Jazzshow - Rod Lucas's hobby
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 -------.
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