However, these agreements aren’t new, and to date, they haven’t impacted a large number of users; generally YouTube does follow the DMCA Takedown Process if a copyrightholder complains, which allows the uploader to “counter-notice” and explain why the video is noninfringing.
Fair Use in the US is a lawful use of copyright, and in most cases, where a remixer or vidder says a work is Fair Use - and it is - YouTube generally reinstates the content in full, at least for viewers in the United States.
Fair Use, as a matter of law, isn’t impacted by what private companies choose to do on their own sites.
Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression.
YouTube has long hosted works that qualify as Fair Use - and they’re not the only site that does so. Tumblr, for example, allows users to upload videos right to the site, as long as you own the content, or it’s legal for other reasons; since Fair Use is a lawful use of copyright, that’s one reason.
YouTube has been a beneficiary of something called the Digital Millennium Copyright Act’s Safe Harbor, which deflects financial liability from sites that host infringing content, if they take the content down when a copyright-owner reports that it’s infringing. There’s a whole Registered Agent-Notice-CounterNotice process in place, and if you don’t follow the various steps, you can’t benefit from the Safe Harbor provisions.
If YouTube is entering into agreements with “certain music copyright owners” that result in YouTube handling “videos containing their sound recordings in ways that differ from the usual processes on YouTube” there is a possibility that YouTube may not be able to take advantage of the Safe Harbor provisions for other content on the site. Can it be that the more they get involved in removing non-infringing (and infringing) works outside of the DMCA process, the less likely they are to be a DMCA Safe Harbor?
The thing is, the agreement that YouTube has with Universal (and possibly other companies) isn’t new; it’s been around since at least 2011 and possibly 2009 or before. FYC’s Heidi got emails from YouTube in 2008 that said, “UMG has claimed some or all audio content in your video Going Underground. This claim was made as part of the YouTube Content Identification program.” (The link goes to the page in the Wayback Machine.)
While some remixers and vidders think that the UMG agreement means that all remixes and fanvids which include songs from Universal Music Group “remain disabled” - they don’t. It’s impossible to tell why certain vids get to stay up and others are taken down and put up and taken down, since the contract between UMG and YouTube is private - and may possibly have been updated since 2009, or 2011, or 2013. It’s impossible to know what the actual parameters are without hearing directly from YouTube or Universal.
We’re going to try and find out.
If this is the same thing that’s been happening occasionally on YouTube since 2009, this doesn’t mean the death of the “YouTube remix” - especially because there are so many other places online to post remixed content - like tumblr - and ways to redirect people to other sites via “silent trailers" on YouTube. And it doesn’t mean anything has changed with regard to the law of Fair Use in the US; the law is what the law is.
Fanworks, remixes and fan-created content have thrived and flourished, online and offline, for decades if not centuries. Even if one site has decided to be weird about users sharing content, it’s not a harbinger of doom for creative fans and their awesome shares, remixes and disruptions.
And we’ll be talking about this on Friday, July 25 at San Diego Comic Con as part of the awesome panel on Transformative Works and Transmedia Creations with theorlandojones of Sleepy Hollow, transmedia producer flourish Klink, Dr. Henry Jenkins, Aron Levitz of wattpad and FYC’s heidi8 as moderator (and FYC’s Hannah will be around too). Learn more here - and if you can’t make it, we’ll have at least an audio recording up afterwards - possibly via DropBox and maybe, yes, on YouTube.