Internet users generally think of YouTube as a platform where, if you play by the copyright rules, the content you post is safe from takedown and, if it's taken down improperly, you have some recourse. But that's not the case, thanks to an additional barrier to lawful sharing: meet YouTube's “contractual obligations.”
YouTube has made special deals with certain rightsholders that allows them to dictate where and how their content can be used on the site.
If your video uses content controlled by these rightsholders, and they object to that use, YouTube will take your video offline and won't restore it unless you can get the rightsholder's permission. Because the takedown isn't subject to the DMCA, the rightsholder has no legal obligations to consider whether your use is a lawful fair use.
Given the importance of YouTube as a platform for expression, these deals can have dangerous consequences for online speech. A case in point: the lengthy ordeal of YouTube channel LiberalViewer. The channel regularly engages in political commentary, and usually criticizes Fox News' presentation of news events. In one such video, uploaded in January 2008, LiberalViewer criticized the way Fox News abruptly cut away from a speech being delivered by then-candidate Obama. Back then, Obama's campaign frequently used Stevie Wonder's “Signed, Sealed, Delivered I'm Yours” after campaign speeches. So naturally, in explaining Fox News' cut away of Obama, LiberalViewer's video included a snippet of the song.
Nothing happened for a few years, until November 2011, Universal Music Group issued a Content ID claim against the video. LiberalViewer immediately disputed the claim and contacted Universal Music Group's agent. After several emails exchanges, rather than lifting the claim, Universal responded with a DMCA takedown notice. Believing his video to be a lawful fair use, LiberalViewer counter-noticed. YouTube briefly reinstated the video, but then took it down again, claiming that the counter-notice was invalid because the user did not have “sufficient rights.” That's how things ended in 2012.
In 2015, partly encouraged by our win in Lenz v. Universal, LiberalViewer once-again submitted a counter-notice. This time, YouTube rejected the counter-notice for a new reason:
Universal Music has doubled down on its DMCA takedown notice and LiberalViewer has nowhere to turn at this point. The channel has little leverage with Universal, a rightholder that has not shown itself to be particularly interested in acknowledging online fair use. YouTube has washed its hands off of the whole affair.
You can still view the video on LiberalViewer's site here (the video plays the song between the 1:42 - 2:16 marks for a total of 34 seconds). But it has been taken off a major platform, with no means of recourse.
Given how much it owes its success to user contributions, it's a shame that YouTube has given some rightholders a private veto right on fair use.
But it is Universal that has chosen to exercise that right. Thanks to that choice, Universal has earned its third entry into the EFF Takedown Hall of Shame.
