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

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/fr