Fair Use and Copyright Strikes

A few days ago I posted about how Universal Media Group filed a takedown notice against a remix I made almost 3 years ago, resulting in SoundCloud removing it from my profile. In this post I thought I’d expand on the concept of fair use when it comes to remixing, from a legal aspect as well as my own thoughts on the matter.

But first an update on the matter. I just received another e-mail from SoundCloud, informing me that my account just received its first copyright strike:

We contacted you recently to let you know that we’d received a report of copyright infringement. Unfortunately, because you’ve been unable to show that you have the rights to post this track, we’ve had to issue a strike against your account. […] A strike is a warning. We issue a strike whenever someone makes a claim of copyright infringement against content in your account that is not successfully disputed.You have one strike, which does not affect your use of SoundCloud. If you receive a second strike, you will no longer be able to make tracks available for download. If you receive a third strike, your SoundCloud account will be terminated in accordance with our Terms of Use.

I guess the upside of this all is that if I receive any more strikes, I won’t have much use paying for a SoundCloud Pro subscription any more. The sad part is that SoundCloud is sinking, quite literally, from monetary issues and the copyright mafia hounding them down for royalties.

On the matter of Fair Use, DjTechTools have written an excellent article on the matter, and summarized it as:

The copyright significance of unofficial (bootleg) remixes is complex and ultimately depends to a large degree on what you’re trying to do with the remix in question. When you remix a song, you’ve created what copyright law calls a “derivative work”. Generally, one is supposed to have permission from the original copyright owner to create and/or distribute that derivative work. Without this permission, you’ve committed infringement. There is, however, a doctrine of copyright law called Fair Use that creates a limited exception to this rule.

From a legal standpoint there are four primary questions relevant to the issue:

  • What was the purpose of the remix?
  • What was the availability of the original song, and had it been released yet?
  • How much of the original song did you use in your remix?
  • Has your remix diminished the value of the original song to the copyright holder?

The remixes I have produced, and will keep on producing have always been for non-commercial purposes, and based on tracks that have already been released. I have a hard time seeing any impact on the value of the original. To the contrary, it has been pointed out to me by people that the remixes have caused people to rediscover (and even discover!) the artists, meaning the remixes actually adds to the fanbase of the artists. So personally, I feel that the remixes I’m producing falls under fair use.

What could SoundCloud do different? With the number of DJs and producers uploading remixes and full mix sets, these copyright strikes are biting the hand that feeds them. SoundCloud should make an effort to protect its users, and work with the record labels to figure out a solution. For example, the only reason to go Pro on SoundCloud is to be able to upload more content. By adding value to make non-producers upgrade to some kind of paid supporter account, the profits could be used to keep the labels at bay. By filing copyright strikes against their paying users, they will lose users and money, and in the end everybody loses.

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