Death to remixes: The enormous hidden threat of Soundcloud's ZEFR partnership
"SoundCloud is by and large one of the rare pure and good things on the internet that the world, in an artistic sense, would be worse off without." - Leslie Horn, "How SoundCloud Changed Music Forever"
Yesterday, Techcrunch wrote what at first glance looked like a pretty basic "Startup X partners with Startup Y" story. It reported that SoundCloud -- which is basically "YouTube for audio" -- had struck a deal with Los Angeles' ZEFR, a company that tracks and identifies content uploaded to open platforms so that copyright owners can monetize it through ads. ZEFR already offers this service to YouTube, and for SoundCloud the partnership is a logical step toward the platform's ambitions to turn its wild and free network into something that produces meaningful revenue for both SoundCloud and its creators.
Which isn't an inherently bad thing. If I upload someone else's work to SoundCloud and a million people stream it, that creator deserves to be compensated -- either through a share of the ad revenue produced from those streams or through royalty payments from a licensing agreement. Moreover, SoundCloud's revenue ambitions could hardly be characterized as greedy. According to Techcrunch, its operating losses have grown along with the site's size, doubling between 2012 and 2013. And while SoundCloud charges creators between $6 and $15 a month if they upload over three hours of content, the platform is free for everybody else -- including its close to 300 million active listeners.
But depending on how the ZEFR partnership plays out, the deal could pose an enormous threat to one of SoundCloud's most dedicated and vibrant user-bases: remixers. And this creative culture of mad scientists, who in the spirit of fair use and digital democracy have operated without the burden of content licenses in their pioneering of truly digitally-native art, is a big part of what made SoundCloud so "pure and good" as Horn described it in the first place.
***Like YouTube, SoundCloud is used by everyone from megastars like Drake to unknown bedroom musicians. Whereas on Spotify or iTunes artists must submit tracks through a label arrangement or a third party service like TuneCore, uploading a song to SoundCloud is about as simple and frictionless as sending a tweet or Facebook update. This has made the platform an indispensable promotional tool for artists like Run the Jewels who post previews or tracks off of upcoming albums, along with throwaway cuts and other bonus material, before any of it arrives on the less open distribution channels like Spotify.
That lack of friction has also made it a popular destination for remixes -- many of which include copyrighted material but are nevertheless singular artistic statements that expand upon the original work. These are the users most threatened by the ZEFR announcement, and dozens of them have already run afoul of what SoundCloud CEO Alexander Ljung tellingly describes as the platform's "evolution as a mature platform for labels and advertisers."
Earlier today, journalist and all-purpose Internet artist Dan Stuckey tweeted a screenshot of an email he received from SoundCloud announcing that it had removed a mashup he created of tracks by R. Kelly and Elly Jackson. The email read, "Our automatic content protection system has detected that your track: 'R Kelly + Elly Jackson = R Elly' may contain the following copyrighted content: 'Baby, Baby, Baby, Baby, Baby...' by R. Kelly, owned by Jive/Legacy." Stuckey confirmed with me that his upload is long gone.
And Stuckey isn't alone. Two days ago, remix artist DJ Cotton said on Twitter that SoundCloud removed 30 of his uploads due to copyright infringement. And some DJs have talked of abandoning SoundCloud altogether thanks to its ramping up of copyright enforcement.
Legally speaking, it would appear that SoundCloud has every right to take down this copyrighted material, but the matter is not so clearcut. The legality of remixes and mashups has always been precarious, relying on a fair use doctrine that is vague by design. The work must be sufficiently "transformative" to avoid violating copyright law, but that distinction is subjective and can only be made by a judge, not a piece of software like the one used by ZEFR.
YouTube users have already encountered this issue again and again. One of the most well-known instances occurred when YouTube took down a video that cleverly edited together scenes from Twilight and television's "Buffy the Vampire Slayer" to recast the film's vampire protagonist as a predatory villain, juxtaposing him against the feminist superhero, Buffy. It was technically and thematically brilliant, and more importantly it was such an illustrative example of fair use that the U.S. Copyright Office cited it in an official document. And yet YouTube removed the video anyway at the behest of LionsGate films, which owns the rights to Twilight. Its creator Jonathan McIntosh was eventually able to have the video reinstated, but only after enlisting the help of a lawyer. It goes without saying that YouTube's standard counterclaim process was insufficient at resolving the issue.
Now, expect SoundCloud users to face similar problems pertaining to fair use uploads, which will likely only be exacerbated by the platform's new partnership with ZEFR. Already remixes and mashups are being taken down, despite the fact that many in Washington believe that these works can and often do constitute examples of fair use -- including Rep. Mike Doyle (D-PA) who spoke up on the floor of Congress in defense of mashup artist Greg Gillis, better known as Girl Talk.
***Something's happening to the Internet. On both a macro and micro level, the freedom and openness fostered by the web and its most popular platforms is receding. YouTube, once a wild playground where anybody could upload anything, has become far more controlling over what its users post and how they monetize it. Facebook is slowly morphing into a no-fun-zone where anything even remotely risque is excised until there's nothing left but Ice Bucket Challenge videos. And now SoundCloud, in its "maturation," has become more concerned with pleasing big name artists and publishers for the benefit of advertisers, than with fostering the open community that made it so appealing to millions of users.
That's not to say artists and publishers shouldn't be able to exert their copyrights. Furthermore, there are plenty of platforms like DatPiff that artists can use to distribute free music built on samples without running afoul of robot copyright cops.
But mimicking YouTube's automated processes for taking down content is not in SoundCloud's original spirit, which Horn captured so perfectly in that Gizmodo piece, and that feels a bit like a missed opportunity. It would have been refreshing to see SoundCloud embrace a system that gave creators a chance to defend fair use claims before their content was taken down. In doing so, SoundCloud would have also endeared itself to a new generation of musicians like the electronic artist Tycho, who told me he loves when other people remix or sample his work, as long as he receives credit. In the new digital music landscape it's one of the most effective ways to build an audience. And SoundCloud's remix community in particular has played a significant role in the rise of EDM as one of the most popular and lucrative genres in today's music industry.
"EDM has evolved in a way that never would have been possible before the internet," Sam Sawyer, marketing head of Subpop Records, told Gizmodo. "I definitely don't think that would have been possible without using services like SoundCloud. It's definitely changed the landscape of how music is created and kind of opened the door for getting weird or finding people all over the world who share your love for, you know whatever weird subgenre of 70s South American disco and totally extrapolating off that and creating some crazy new amalgamation that no one's really heard of."
Not that SoundCloud's abandonment of core users in favor of big brands and big bands is in any way novel. This is the way big consumer Internet companies are built today: They raise a bunch of cash, use it to create a great and mostly free product users love, and then once it comes time to pay back the venture capitalists or public shareholders who ponied up all that money, their loyalties shift and the system becomes as closed off as the media empires of old.
Welcome to the big leagues, SoundCloud.
[illustration by Brad Jonas]