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April 20, 2015, 9:30 a.m.

Journalists shouldn’t lose their rights in their move to private platforms

The shift to distributed content means concepts like fair use are increasingly in the hands of private companies — like SoundCloud.

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.

This time last year, Patrick Hobbs was in an audio production class I teach at Mercer University. For his final project, he did a radio story about an episode from Australian history known as the Great Emu War, a farcical mission in which Australian soldiers used machine guns to thin a herd of emus that was harassing wheat crops.

Hobbs did a great job creating a sound-rich presentation, despite the fact that the story he was telling took place more than 80 years ago. He integrated lots of cool non-diegetic sound effects, Radiolab-style, and used music to jazz up a few of his transitions, including 25 seconds of “Pumped Up Kicks” by Foster The People, a song that includes the line: “All the other kids with the pumped up kicks, you’d better run, better run, outrun my gun.”

I believe Hobbs’ use of the song may have been “transformative,” which is one of the many fair use justifications available in U.S. copyright law. (If you’re unclear on what qualifies as fair use, listen to this deep dive I took on the topic with American University’s Patricia Aufderheide.) I may be wrong, but it’s an argument that’s at least worth consideration.

Rather than just playing the song because it’s a good song that people like to listen to, Hobbs changed its meaning by putting it in a new context. Instead of it being a song about school shootings, Patrick made it about emu shootings, and he only used a few seconds of the music — just enough to get his point across.

I had Hobbs submit his project to me on SoundCloud, where the file lived peacefully for a year. And then a couple weeks ago, poof, it was gone. SoundCloud sent Hobbs a note saying they had detected the Foster The People song, and if he believed he had the rights to it, he could file a dispute — but until then, the file would not live on SoundCloud.

“This seems backward — me having to prove my ‘innocence’ rather than the other way around,” Hobbs wrote in a Facebook message to me, asking for my advice.

Indeed, while the Digital Millennium Copyright Act states that copyright holders must first send a takedown notice when they believe infringement has occurred (giving people an opportunity to respond before any action is taken), a third party such as SoundCloud that hosts your content can take it down at will.

I helped Hobbs craft some language explaining his fair use reasoning, and he filed his dispute with SoundCloud. A couple days later, he received a message — his dispute was denied.

“They didn’t give any reasoning, they just [gave] the text equivalent of a big red stamp,” he wrote to me.

This instance may seem trivial. The freedom of the media to speak truth to power does not rest on the ability of a college student to use an indie pop anthem in his radio story. Or maybe it does. If we don’t stand up for our fair use rights in situations like these, our rights might not be available to us when the more serious occasions come along.

So I got my hackles up and intervened on Hobbs’ behalf, sending a note to SoundCloud’s media email demanding an explanation, saying I planned to write about this experience.

We received a response from “The SoundCloud Copyrights Team,” explaining that this all started when Sony (which distributes that Foster The People song in the U.S.) detected the music in Hobbs’ story and sent SoundCloud a complaint. Sony, I’m guessing, has bots that comb the Internet for its content.

Here’s the key graf from SoundCloud’s email:

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.

Harrumph. So because fair use doesn’t apply everywhere, SoundCloud won’t recognize it anywhere.

“It means that basically any country could take down the entire system,” Hobbs said.

There are ways for SoundCloud and companies like it to get around that problem. Hobbs, for example, has a great mashup of “Thriller” and “Uptown Funk” on YouTube. When YouTube determined that Hobbs didn’t have any claim to the source material other than fair use, it blocked the video — but only in Germany, he said.

Of course, YouTube is part of Google, a global corporate leviathan. SoundCloud is just a little European firm. Maybe they don’t have the capacity to block content on a country-by-country basis.

And even if you just look at it inside the bubble of the U.S., fair use is a complicated thing. Basically, SoundCloud is saying: “We don’t have the capacity to deal in the gray areas of copyright law. You may indeed be within your rights, but we don’t know that, we don’t have time to verify that, and we can’t risk it, so your content can’t be on our site anymore. You don’t have to go home, but you can’t stay here.”

I get it. I’m sympathetic. I’m also a longtime SoundCloud fan and user. But this still really concerns me.

There’s been a lot of talk in recent years about how the Internet, and social media in particular, is the new public square where we exercise our free speech rights. And yet, this new square just isn’t public. If you post content to Facebook, Instagram, YouTube, or SoundCloud, you are on private property — the owner can step out the front door and shoo you away at any time.

We are increasingly vesting our First Amendment rights in the hands of private companies. This, more than anything, is what scares me about Facebook’s new deal with news organizations where it will host stories from The New York Times and others within Facebook itself, rather than linking to from the Facebook News Feed. We’re going to face some pretty profound questions about how we exercise our rights in that new environment.

But for now, I think there’s a very practical and immediate takeaway, which is that if you’re hosting your podcasts on SoundCloud, you’ve got to watch what you put in them. Even if you have a valid fair use claim, it might not matter — one day, poof, your show could just be gone.

My message to SoundCloud: If you want to work with journalists, you’re going to have to find some way to help us assert our fair use rights. Otherwise, your platform simply is not useful for what we do.

This article is adapted from an episode of The Pub with Adam Ragusea, a weekly podcast about issues in public media from Current. Ragusea is a journalist in residence and visiting assistant professor at Mercer University’s Center for Collaborative Journalism.

Photo of Soundcloud sign by juannomore used under a Creative Commons license.

POSTED     April 20, 2015, 9:30 a.m.
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