Tag Archives: fair use

Oh, Soundcloud. Again?

Hoo boy. A few years back, I successfully disputed a file I legally uploaded to Soundcloud as part of my dissertation. And now, a file I uploaded around the same time is suddenly under investigation as well.

Here’s the short version: for the diss, I was reading a lot of David Burrows, my favorite music philosopher, and I wanted to explore a quote of his in a brief audio experiment. He writes, “Seeing is like touching, hearing like being touched” (Sound, Speech, and Music 21). So (according to my memory, which is a little awkward because I can’t actually listen to the file I’m describing, and I haven’t for a few years) I recorded myself reading Burrows over and over, with various effects and musical elements added and removed to enact the ideas I was writing about those days: the ways music and sound’s meanings are embodied in the complete context of their delivery and in the experience of the listener. It was a way to put into practice my scholarship. It’s nothing fancy, just a playful file–but of course, when you’re doing scholarship on sound, it’s not just play; it’s play toward a critical end.

But now, Soundcloud’s auto-search algorithms say I don’t have the right to use one of the short clips (“short” = less than 10 seconds, if my memory is right) I used: a piece from Bela Fleck’s collaboration with Luo Cultural Association, an African group he recorded and toured with. (I bought the CD at a concert in Orlando, had them sign it and everything.)

Of course, it’s worth pointing out that Soundcloud has no problem with my use of the written Burrows quote, because the way we talk about and police short clips of writing is completely different from the way we talk about and police short clips of music. Sigh.

So I disputed the copyright claim, after being annoyed at how little respect their system seems to give fair use:

After I clicked “some other reason,” Soundcloud gave a big list of things that it warned me wouldn’t be good enough answers–things like “I only used a small amount” or “I own the CD” (those aren’t actual quotes; I don’t have the page open anymore). The thing is, a lot of the things on its list are things that actually could help a fair use case, even if you acknowledge that they’re not sufficient defenses on their own.

Here’s where Soundcloud and I agree: people really misunderstand the nature of fair use. I mean, that list could be useful for people who really think that having a single factor in their favor is good enough. But here’s where we differ: I think that walking people through real-world cases (say, when their upload is contested) is a way to teach them the way fair use actually works. I think that list could/should be given in the context of a fair use checklist, or links to successful fair use defenses people have used in the past, or even a short video on this stuff.

Soundcloud disagrees / doesn’t have time / isn’t interested / whatever.

So I disputed claim. Here’s what I wrote, for the record:

I believe my use of this clip falls under fair use. I’ll walk through the 4 factors using the checklist at the Columbia Universities Libraries (https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html#Fair Use Checklist), after providing a short background.

I’m a scholar of rhetoric and writing who studies remix, copyright, and music. (I’m happy to provide citations, if you’d like to see them.) The upload in question came from a time when I was reading music philosopher David Burrows’ work and writing about the ways music and sound affect humans in different ways depending on the context. But because of the nature of my work, it was important for my listeners to actually *hear* the effects I was discussing, not just read about them. That purpose leads directly to the first of the four factors:

My use of the copyrighted clip was to help me and others explore this scholarly, critical concept (the question of how music is or isn’t “like being touched,” in Burrows’ words, especially when the background music and vocal delivery changes). I therefore believe my use of the copyrighted work counts as transformative under U.S. copyright law: I took music that was designed for entertainment purposes and digitally altered part of it, transforming it for a scholarly, critical purpose. This factor weighs in my favor.

It’s true that the copyrighted work I used to help make my point was “highly creative work” (in the words of the fair use checklist I’m using). This factor weighs against me.

Despite Soundcloud’s point that using a small amount of a copyrighted work doesn’t make the use more likely to be fair, “amount” is in fact one of the four fair use factors. (Yes, I know that people have been found liable for using very short amounts of music–but it’s still one of the four factors.) In this case, I used a very small amount of the copyrighted song. I don’t have a copy of my uploaded file on this computer, but I believe I used fewer than ten seconds of the song in question–not that ten seconds is a magic bullet, but that it’s a very small percentage of the overall song. This factor weighs in my favor.

Following the fair use checklist, I see aspects of this factor that fall on both sides. On one hand, I did make this (very short) clip (with talking over much of it) available publicly on Soundcloud, which seems to hurt my case. But on the other hand, I’m using a clip that I legally own on CD (bought at a concert, actually)in a way that could not possibly have a negative effect on sales of this album. My belief is that this factor leans more in my favor than against it–after all, who could claim that someone would hear this clip and then be less likely to buy a copy? It seems more likely that the opposite would happen: the listener would think, “Ooh, that tiny bit was cool! I want to hear the whole thing whenever I want!”

Though the four factors aren’t always weighed completely equally by judges, it’s common for fair use cases that actually go to court to decide in favor of the side that has the majority of the four factors in their favor. (See the cases listed by the federal government at http://www.copyright.gov/fair-use/fair-index.html for examples of many music cases.) Therefore, since three of the four factors weigh in my favor, I believe I have a genuine fair use to use this work in my piece.

(And if you don’t mind my saying so, I believe that any human would agree with my judgment. This casts some doubt on the ability of Soundcloud’s auto-search algorithm to adequately understand the complexities of fair use. And that, in my mind, will lead to a chilling effect on thousands of today’s creative minds, who will opt to compose safely instead of learning about the reality of fair use law. It’s disappointing to me that a platform as revolutionary as Soundcloud would participate in that cultural silencing.)

UPDATE (5/26/16): They agreed. That’s nice!



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More on Digital Copyright

The other day I wrote about my first copyright dispute, over a 1931 classical recording that I (legally) posted to Soundcloud. I promised to give an update, but it’s not very exciting: within 24 hours I got a very simple email from Soundcloud saying that they had allowed me to post the track. Yay for Soundcloud! But not yay for Drama.

So it’s up. It’s not even a very exciting clip of music, but it’s up:

Seems like a lot of fuss over a quiet, scratchy minute of 1931 sound.

Even more, I decided not to use the sound clip as posted. If you remember, my reason for uploading it was to use it as a “sonic epigraph” in the introduction of my dissertation, to make a point about the nature of hearing sound as opposed to talking about it. Instead of embedding the sound into the Word file, I thought I’d just host it on Soundcloud and give a link to it there. But for the conclusion of the dissertation, I wanted to share the last minute of the same piece, but this time from a recent recording–which means a recording very much still protected by copyright. But after going through the “defending myself” thing, I don’t want to upload that other clip to Soundcloud, and I don’t want to send readers to one online space for one sonic epigraph and then another space for another sonic epigraph, so I just put them both online somewhere else that wasn’t Soundcloud.

The thing is, I think I’m within my fair use rights to share that final minute (of a fourteen-minute copyrighted recording) in the conclusion of my diss, in the same way that I’m within my fair use rights to share quotations (within reason) in my academic publications. The paradox of fair use is that it’s both awesome and crazy-frustrating that there is no absolute way to know if a use is fair or not until a judge says so. The best we can do is work our way through the four-part test included in U.S. copyright law, perhaps with the help of an awesome tool like the University of Minnesota Libraries’ “Thinking though Fair Use” tool. 

But even with the tool, whether or not I can fairly use that last minute of the track is sometimes really hard to tell. Here are a few checkmarks that I wasn’t sure how to check:

  • “Criticism or commentary”: I decided not to check this one, as I’m not criticizing the work or the recording itself. In fact, I’m saying, “Hey, let this work do to you exactly what it’s meant to do!” That is, listen to it.
  • “Transformative use”: I’ve heard this phrase tossed around in different ways, which has left me unsure when something is transformative or not. The checklist’s description is “creates a new work with a new purpose,” which seems to describe someone singing a cover song on YouTube (more on that below), but doesn’t seem to describe the transformative use implied by my using audio editing software to grab a clip. What if I had added fades? Sped the whole thing up a bit? (How much?) How transformative is transformative?
  • “Decorative or other non-critical, non-commentary use”: In some ways, I absolutely want this to be decorative music. But on the other hand, I want it to inspire self-commentary, complex meaning-making. In my dissertation’s conclusion, I ask people to “Listen to it with the weight of this project weighing on it.” That’s kind of critical, kind of not.
  • “User owns lawful copy of the work (bought or otherwise legitimately acquired”: I’ve never heard of this as a factor before. (They list it under the 4th factor, “Effect on the potential market value of the work.”) In this case, they’ve got me: I streamed the track through Spotify and used Audacity to snatch the audio straight from my sound card. Sneaky, yes–but if someone has a definitively fair use reason, isn’t circumvention like this justified? For instance, the DMCA allows professors to break DVD copy protection to grab clips of movies to show in class (at least it did the last time I checked). That means that those professors are using all sorts of sneaky software for sneaky actions that in some circumstances would be mad illegal–but which are totally fair in that case. In another situation, I published an audio essay once that used a couple clips from the score to the 1927 silent film Metropolis. The version of the score I listen to was ripped directly from a DVD by some dude who knows how to do that, and thus it includes tracks that aren’t available on the commercial release of the score. Does the availability or unavailability of a track give me more or less moral ground when using that music for another purpose? I didn’t worry about it for the audio essay because I felt very strongly that I was within fair use (for lots of reasons)–but if I hadn’t been, would the source of the music have mattered?

Above, I mentioned YouTube cover songs, particularly because I just read a stellar piece from Wired on the subject: Andy Baio’s “Criminal Creativity: Untangling Cover Song Licensing on YouTube.” (If you haven’t read Baio’s account of the copyright kerfuffle over the cover image for his 8-bit cover album of Miles Davis’s Kind of Blue, you need to get over there and read it stat. Seriously, why read my blog when you can read his?)

In the Wired piece, Baio describes the crazy difficulty of trying to figure out exactly when a cover song on YouTube is illegal–that is, if I’m allowed to pull out my guitar and record myself singing “Cherub Rock” or not. He points out the trouble behind how we treat creative people who are skirting the edges of current copyright law:

But there’s something strange about this begging-for-forgiveness approach to copyright. It’s like driving without traffic signs, only finding out you broke the law when you’re pulled over.

That’s exactly how I felt with the copyright dispute on my Strauss clip: that I hadn’t been speeding, but I was pulled over anyway and had to explain myself. And now, I think I’m still in my fair use rights to upload my second sound clip to Soundcloud, especially since I can list it as private so that no one will stumble upon the link unless they have a direct link to the file, which they would only get from my dissertation. But I don’t want to explain myself to any more cops.

Baio also gives us the real solution to these issues:

The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.


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My First Copyright Dispute!

I haven’t been blogging lately because of a little ol’ dissertation that I’ll be finishing up next week—but this story is so good that it needs to be shared while it’s still fresh.

In short, I just filed a claim with (the awesome sound-sharing site) SoundCloud to contest its accusation that I had uploaded copyrighted material to the site. Here’s what happened:

Throughout my dissertation, I use tons of epigraphs at the beginning of chapters and sections. This makes sense, because when someone has read so much stuff on his topic, he’s got to use all those awesome quotations  somewhere, and it would be bulky and annoying to fold them all into the main body. But for the introduction to the whole diss, I wanted to use a musical epigraph—a one-minute clip of instrumental music that would do the same things epigraphs usually do: whet the appetite for the upcoming content, surprise the reader a bit, poetically or subtly hint at information to be more didactically expounded upon later. This echoes my argument through the diss for more emphasis on sounds themselves, not sounds-as-explained-in-words or sounds-as-symbolized-on-paper.

For this musical epigraph, I chose to use a minute at the beginning of Richard Strauss’s Till Eulenspiegel’s Merry Pranks (for lots of reasons that I won’t go into here; just read the dissertation if you want to know). Happily, I found a copy of a recording that Strauss himself had conducted for a 1931 78 RPM recording, which the good folks at archive.org had digitized and shared online here. They gave it a Creative Commons BY-NC-SA 3.0 license, meaning that users may legally download this, remix it in any way, and reshare it how they choose, as long as they 1) attribute the work (probably both to Strauss and to the archive.org people who digitized it?), 2) don’t make money from this re-sharing, and 3) use the same CC license when resharing.

So I took the mp3, used Audacity to cut out the first minute, and uploaded it to SoundCloud. (I admit that in my rush, I didn’t check to make sure I was “share aliking” the exact Creative Commons license in the options on SoundCloud, something I figured I would do later. This was definitely my bad—but I was writing some awesome stuff right then and didn’t want to pause.) I wanted to insert a link to this online audio file in the text of my dissertation’s introduction, which seemed a better idea than linking to the whole fourteen-minute piece hosted on archive.org or embedding the file into the Word Doc (which is possible, but I didn’t know how it would translate to different word processors or if it would survive a translation into pdf). 

But SoundCloud stopped me in mid-upload. The sounds matched copyrighted material, they said, so I couldn’t upload it. They gave me the option of contesting the claim, which I did, but they certainly tried to scare me out of it, saying that I was risking future legal trouble, the revocation of my SoundCloud account, and so on. It was definitely big, scary, legal language designed (it seemed) to convince me not to contest the thing at all, to just move on and live a happily timid life where all copyrighted material was STAYED AWAY FROM for all time.

After I agreed that yes, I was dumb enough to contest this thing, I got to these two options:


But as I explained, neither quite fit my experience. Here’s what I wrote:

My claim doesn’t quite fit into either of the options I’m given here. That is, I do believe that the copyright content has probably been “mistakenly identified,” but I’m *not* “the sole original creator of the uploaded material.”

Simply put, I tried to upload a clip of a piece that archive.org has licensed with a Creative Commons license (BY-NC-SA 3.0), which I downloaded from http://archive.org/details/StraussTillEulenspiegelstrauss. To share just the first minute of this piece, I deleted the parts I didn’t want on my home computer and then reuploaded to SoundCloud to share just the beginning. (That’s because this CC license allows derivative works.)

It seems to me that there are two possibilities for why this was flagged, though there might be more. 1) The archive.org recording is correctly licensed, in which case I may legally share it here (as long as I use the same CC-BY-NC-SA 3.0 license). If that’s true, then perhaps SoundCloud misidentified it because it so many other recordings of this piece *are* copyrighted. If that’s not the case, then there’s the other possibility:

2) Archive.org mistakenly gave this CC license to material that they didn’t have the right to share in this way. If that’s the case, I apologize for trying to upload this copyrighted material to SoundCloud and I take back this request to put it up.

Then at the bottom of the screen, after I gave all my full contact information (required), I checked each of these exciting boxes (also required):


Intense, huh?

I’ll report here what happens, if anything. As you can probably tell, I’m feeling a little pushed around, but also fairly respectful. That is, there are inevitably defensive emotions that come up when it’s implied that you’re a criminal when you don’t think you are, and I’m still trying to wrap my head/heart around the exact nature of those emotions. But on the other hand, I do support SoundCloud’s decision to use auto-detection technology to keep copyrighted material off their site, and I do support their decision to give me space to explain myself. 

But still, I can’t help but wonder how much people restrict their fair use activities because of this kind of thing. I hate the idea of creative folks wanting to make amazing remixes that exercise their very legal fair use rights, only to shut themselves up out of fear of being bullied. Sigh?


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Go Read: YouTube and Fair Use

Teacher-friends, I especially urge you to check out a couple of smart posts over at viz. on YouTube’s automatic system for flagging copyrighted material on uploaded material:

What I especially like (besides the wonderfully subtle–or not?–image at the top of each post) is the thoughtful walkthrough of the implications of YouTube’s policy here, which in effect uses very smart tech-driven copyright-detection solutions to spot possible copyright infringements and then freak out confused users, who may be completely within fair use rights but who aren’t really encouraged to understand what that means.
The author (not sure who; it’s listed as being by snelson, who isn’t on the viz. contributors page) writes,
While YouTube doesn’t deny users their Fair Use rights, as such a practice would be illegal, they certainly frame the debate in such a way to make exercising Fair Use difficult. . . . However, even when “educating” the public about copyright, YouTube errs on the side of copyright for owners’ rights.
Seriously. I can’t wait to talk through some of this with students–except I’m not teaching this semester! Curses!
I wonder what Tarleton Gillespie would have to say about this. . . .

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Copyright and Education

Photo of a copyrighted rock

James Glover, "Copyrighted rock," available under a CC-BY-NC-SA 2.0 license at http://www.flickr.com/photos/jamesg/853688999/

In a recent meeting for our First-Year Composition program, I volunteered to find 4 recent readings on the topic of copyright and education. Easy, right? I’ve got tons of pages on copyright, IP, and fair use bookmarked on Diigo, and I try to keep up with scholarly conversations in the field on the stuff.

Of course, it took longer than I expected. But I’m not complaining–I was reminded of awesome stuff I had saved and promptly forgotten. So after wandering through a few options, I landed on the following four readings.

(Note: these lists of resources are shared with students in a printed textbook, with the idea that students who choose to begin researching this topic will look up the articles themselves, so at least one had to be un-Google-able, available only through our library databases. Thus the MLA citations.)

McDonald, R. Robin. “Copyright Suit Over University’s Online Reading Room Could Set Academic Use Standards.” Law.com. ALM, 9 June 2011. Web. 21 June 2011.

A well-done news story of a yet-to-be-decided case that could seriously affect the way educators can distribute digital copies of readings.

McGrail, Ewa, and J. Patrick McGrail. “Copying Right and Copying Wrong with Web 2.0 Tools in the Teacher Education and Communications Classrooms.” Contemporary Issues in Technology and English Language Arts Teacher Education 10.3 (2010): n.pag. Web.12 July 2011.

A free, online, long, and Google-able scholarly journal article that walks through a number of complex issues that come up when teachers give assignments that ask students to do multimedia projects from found materials. Long, but good stuff.

Gardner, Traci. “Mixing or Plagiarizing?NCTE Inbox. National Council of Teachers of English, 17 Feb. 2010. Web. 12 July 2011.

A short piece describing a young novelist’s defense of her plagiarism as simply what this generation does. A great discussion-starter, especially when students can apply the ideas from the previous resource to this one.

Dubisar, Abby M., and Jason Palmeri. “Palin/Pathos/Peter Griffin: Political Video Remix and Composition Pedagogy.” Computers and Composition 27.2 (2010): 77-93. ScienceDirect. Web. 12 July 2011.

A scholarly piece that needs to be accessed through the databases. Full of interview data and excerpts from the work of students doing politically active remixing–so it seemed more applicable to a list of sources on copyright and education than some of the other (and super-awesome) work on IP in recent-er issues of Computers and Composition.

Remaining, wriggling thoughts:

  • I continually wondered how one-sided to be when selecting resources. I mean, I’d love to convince these students to use their fair use rights all over the place,  but this didn’t seem like the place for too much propaganda. A perfect balance would have been to include 2 really conservative and 2 really liberal views on copyright in the classroom, but the sources I had bookmarked didn’t really lend themselves to that kind of thing. But I’m not sure I made the right choice.
  • It seems obvious now, but I should have included some video demonstrating some of these principles. (Everything is a Remix, anybody?) I didn’t because I wanted to focus on education (and I only had 4 slots!), but I’m increasingly unhappy with the choice. Oh well!
  • Um, why didn’t I crowdsource this? I sent nary a tweet asking for advice. Sorry, friends; I know it would be a richer 4-item list with your help!

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What’s Fair? Untangling Copyright

Two years ago, I was assigned to make a video in a class I was taking in the instructional technology department of USF’s school of education. I decided to focus on fair use, having recently been heartily inspired by Martine Courant Rife‘s chapter “Ideas Toward a Fair Use Heuristic: Visual Rhetoric and Composition” from Steve Westbrook’s edited collection Composition and Copyright: Perspectives on Teaching, Text-Making, and Fair Use. (There’s a great synopsis of the chapter here.)

I never liked a few things about my video: the (required) moving titles at the end, the bad mic quality, some of the more cryptic image choices. I always planned to fix the thing up and get it out there, but I never got around to it.

In the meantime, I’ve noticed that I’ve found myself becoming our FYC department’s fair use champion–and I often find myself quoting Rife’s chapter in defense of the doctrine. So today I decided to compromise: I would fix the horrid end credits and a couple other minor things, ignore the big problems, and upload it to YouTube regardless. And really, after a couple years, I still liked the video more than I thought I would, and some of my gripes are probably things that I’ll notice more than others.

I hope it will be a conversation-starter, potentially even a controversial one. But we need a little controversy in our classes for the lessons to stick, right?

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I Politely Request that Don Henley Chill Out

Over at (the generally fair and brilliant) Copyrights and Campaigns blog, Ben Sheffner has posted bits from an exclusive interview with Don Henley, regarding the recent settlement and apology he got from a senator who parodied Eagles music in his campaign without permission. (Brief NYTimes summary.)

A couple of brief responses to some of the post’s content (keeping in mind that I’m not a legal expert in any way, and thus am just responding based on my impressions of copyright law, culture in general, etc.):

DeVore argued that the videos were fair use parodies of Henley’s songs, but the court held that the videos were satirical rather than parodic and rejected the fair use defense.

I can’t help but wonder if the satire/parody break-down will (or should) continue, as remixed materials continue to proliferate with always-varying aims and purposes. And will the new DMCA exemptions, which mention some specific genres of remix, also expand the allowed kinds of rhetorical purposes used in digital remixes?

In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.”

This made me sit up straight. The idea of a composer managing how music (or any composition) will eventually be used feels wacky to me. When I buy a physical object–a plank of wood, a couch, a car, a computer–the creators have no say over how I physically manipulate those objects, crafting and adjusting and tweaking them as I see fit. Increasingly, text and music and visuals are the same: once they’re out in the open, we play with them. That’s just what people do; to reject that basic premise of human creativity seems kind of silly to me. (And yes, I’m showing how much I’ve been influenced by Tartleton Gillespie and Cory Doctorow here.)

He added, “People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.”

But that’s what composing is: taking the ideas and genres we’ve learned, and playing around with them. It might be frustrating, but that’s just how it goes. (I know, I know–this is less of a thoughtful argument post and more of a “Sheesh” emotional reaction post.)


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