Goodbye SoundCloud?

I love SoundCloud. I love it for being an exceptionally easy way to share my music with people all over the world. I love the community aspect, especially the Disquiet Junto. I have all of my students host their portfolios there. But like a lot of the electronic musicians who form the heart of the SoundCloud userbase, I’m running into some problems with copyright.

Recently, I needed to unwind from a stressful morning, so I fired up Ableton, put in some Super Mario Bros mp3s and James Brown breaks, and went to town. I uploaded the results to my SoundCloud page, as usual, but got one of their increasingly frequent copyright notices.

I’ve uploaded a lot of material to SoundCloud that violates copyright law in various ways, and for the most part, no one has made any objection. I’ve occasionally used some long intact samples that triggered takedown notices, but my remixes and mashups are usually transformative enough to slip through the filter. Lately, however, I’m finding that SoundCloud has dramatically stepped up its copyright enforcement. A few months ago, I could have posted my Super Mario Bros/James Brown mashup without any trouble. Not any more.

SoundCloud’s content filters have also been combing through old tracks. I did a jazz mashup four years ago that was abruptly taken down last month. That takedown came with a threat:

Naturally, I don’t want my SoundCloud account to be shut down. But I’m certainly not going to stop appropriating copyrighted material for creative purposes. Something has got to give. That something is not going to be me. Much as I appreciate SoundCloud, they need me more than I need them. I hosted my tracks on this blog before SoundCloud came along, and I’ll be doing it long after they’re gone. Here’s the Super Mario/James Brown track:

Feel free to download it here.

If I were talking to a human at SoundCloud instead of a computer program, I’d be arguing that all of my appropriations constitute Fair Use. Here’s the relevant part of the Copyright Act of 1976:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Let’s look at my mashup in light of the four criteria.

1. Is my usage commercial? Nope. I’m not making any money by posting this music. To the contrary, I pay SoundCloud for the privilege of posting there, and I also pay to host this blog.
2. The copyrighted works are iconic pop artifacts. That’s the point of referencing them.
3. My work is self-consciously educational, and has been since long before I became a music professor. I’m using long enough pieces of the Mario theme and James Brown tracks to be recognizable–again, that’s the whole point–but you’d never mistake my mashup for the source material.
4. As for the potential market for or value of the copyrighted work? I’m certainly not dissuading anyone from buying Mario products or James Brown recordings. To the contrary; I can demonstrate that my relentless advocacy of James Brown has led to quite a few purchases.

So it seems to me like my Fair Use case is pretty airtight. But here’s what SoundCloud has to say in their help section.

I uploaded my mashup for non-commercial purposes, doesn’t this qualify as fair use?

Fair use is a legal doctrine that primarily exists in the copyright law of the United States. Fair use limits the exclusive rights granted by copyright and allows the use of copyrighted material for certain limited purposes only, without requiring permission from the rights holder and depending on the exact use of the original work to be determined on a case by case basis. Purposes recognized under fair use may be such as criticism, comment, news reporting, teaching and similar activities.

However, uploading a mashup for non-commercial and promotional purposes to SoundCloud does not fall within the fair use exemption.

Well now. That is a debatable assertion. Elsewhere, SoundCloud makes this even more dubious assertion:

Fair use in the US, and similar concepts elsewhere, allow limited use of copyrighted works in limited circumstances, for example, education and private study, and news reporting.  Fair use is a complicated thing – many factors need to be taken into account, including the amount of the copyrighted work that is used, how it is used, and the effect this has on the original copyrighted work.  Each situation needs to be considered individually. Nevertheless, (for example) it is highly unlikely that including a track in a DJ mix or mashup, remixing a track, or posting a track because you think it is good promotion for the artist, will be considered fair use.

I do consider my work to be education. Literally! I’m a music teacher! I also consider my work to be a form of commentary, and I’m not just saying that because I’m a highfalutin’ academic. Any sample, remix, or mashup is intrinsically a commentary on the source material. Furthermore, there’s no contradiction between a DJ commenting on a piece of music and doing self-promotion. “Serious” scholars promote themselves as much as their ideas when they write books and articles; how are musicians any different?

I doubt that the people who run SoundCloud are actually bothered by remixes and mashups. It’s not an accident that DJs and producers were the core users of the site for its first few years. This whole copyright crackdown feels more like an attempt to placate the lawyers at Warner and Sony and the other gigantic corporate entities with whom SoundCloud needs to make deals with. I don’t resent the company; they’re a business, and they have to do what they have to do to keep the lights on. I would hate to part company with them. But internet companies come and go. Creative musical expression is forever.

There are bigger issues at stake here than where some music producers post their tracks. Whether or not my specific Fair Use claims are valid, they deserve greater weight and consideration. Rather than issuing automatic takedowns and then requiring personal intervention to get them reversed, SoundCloud should give creators the benefit of the doubt. The onus should be on the copyright holders to demonstrate that they are being harmed by people like me. The heavy-handed copyright enforcement tactics of SoundCloud and companies like it have a profound chilling effect on creative expression. I’m an activist and academic, so I have the psychological wherewithal to push through SoundCloud’s resistance and keep making and sharing my music on my terms. But not everyone does. Plenty of musicians out there preemptively censor their ideas out of fear of getting in trouble for copyright reasons, even if their work is legitimate Fair Use. This is bad for music, and bad for civilization in general.