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

… 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