Claiming fair use won’t save you if you post content from YouTube’s partners

If you’re a frequent YouTube-r, you’ve probably seen them: the notices warning that the video you were trying to watch has been removed after a copyright infringement claim. If you’re the person who posted the video, and you file a counter-notice arguing the video falls under fair use and the copyright holder doesn’t take any further legal action, YouTube can put that video right back where it was. Except, it seems, if the content belongs to one of the music groups it’s partnered with.

YouTube itself doesn’t make judgements on whether or not the contents of a video could be seen as fair use (for example, using copyrighted material for news reporting, teaching, commentary or research), it relies on the order of a court on the matter. But some of its recent policy changes suggest that it does not deal with all cases of alleged copyright infringement equally. Specifically, its terms now include an exception for works related to its “contractual obligations”:

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

YouTube will inform you if this is the case for one of your videos, and will provide you with contact information for the complainant whenever possible so you can discuss the matter directly.

So, who are these music copyright owners who have agreements with YouTube which strip users of their chances of getting their video reposted after they file claims of fair use in protest to the take-down? According to one report, the list could include record labels like the Universal Music Group. At least one user who claims to have fallen foul of an infringement notice from Universal filed a counter-claim and was told that the group confirmed the information in the notice but YouTube could not honour it. It said that the incident would not count as a copyright strike and the account would not be penalised. But the video would not be restored.

TechDirt speculates the reason YouTube may be treating these claims differently stems from its reliance on their content for Vevo, its advertiser-friendly music video service. “Because part of the Vevo deal is a promise that Vevo gets exclusive rights to videos involving certain artists’ works, it allows YouTube to simply ignore fair use claims from users on such content, and refuse to ever post them again,” suggests the report.