Under
pressure from movie studios, record labels
and their friends on Capitol Hill to filter out copyrighted
material, YouTube’s parent company Google has
developed a tool that
will likely
restrict the flow of legal content over the Internet.
YouTube introduced
the beta version of its ‘video identification’
system a few days ago, the purpose of
which is to control the amount of infringing material that appears on
the site.
This raises the bar for each and every entity that serves as a
conduit for
copyrighted works online, and was most liekly prompted by the $1
billion lawsuit from Viacom.
How It Works
A copyright holder uploads its
works
into a reference database, which then generates identification files by
which uploaded videos are matched. When a user uploads a video onto
YouTube, that video is matched with the identification file.
If there
is a “match” (more on that later), then the video
is subject to
whatever action the rights holder has decided to apply to it; for
example, it could be blocked, “tracked” or
“monetized.” If the video is
blocked, the user will be notified, and can immediately contest the
claim by clicking onto a link.
Once YouTube receives the user contest,
it will put the video back on the site. At that point, notice
and takedown provisions
of the Digital Millennium Copyright Act (DMCA) would kick in.
If the
copyright holder continues to want the video removed, it would have to
send a takedown notice required by the DMCA. The user can send a
counter-notice, whereupon the video would be reinstated, etc.
Beta Kinks To Work Out
This being the beta version of the system, there are still a
lot of
kinks to work out. Chief among them is the definition of what
constitutes a “match.” We were told at a briefing
that a few seconds
would be insufficient for a match, but not much else.
Right now,
YouTube limits videos to 10 minutes, but it seems unlikely that YouTube
will adopt a minimum of that length.
Where YouTube sets this minimum
may be the single most important factor to determine whether there will
be a proliferation of false positives, that is, legal content blocked
by the copyright holder.
While YouTube should be be praised for making it easy for a
user to
contest a block, it should also recognize that permitting a copyright
holder to have “block” as a default setting will
likely limit the free
flow of legal content over the Internet.
People Will Fear Lawsuits
Regardless of whether their
use of copyrighted material is legal or fair use (such as commentary or
criticism, which can legally use large portions of copyrighted works),
many users will simply give up after being blocked (particularly if
they fear a possible lawsuit). Or others may not bother to post to
YouTube at all.
This is why it is critically important that when
YouTube sends notices to those users who do get blocked, that they also
provide information about users rights, including fair use, so users
can make an intelligent choice about whether to challenge their
accusers.
YouTube was also not clear about exactly what it would mean
for a
copyright holder to be “tracked.” Rights holders
would have a special
portal that would tell them how many times matched content is viewed
and how many times their content is blocked.
According to YouTube, the
only personal information the rights holder would get is the email
address of the user if they contest the blocking of
information.
But
keeping in mind the recording industry’s failed battle to get
personal
information about P2P file sharers from Verizon, you can believe that
the content industry will want to use this tool to get as much
personally identifying information as possible from YouTube.
An Effect On The Whole Internet
What also causes us great concern is the effect that
Google/YouTube’s action will have on every other Internet
conduit for
copyrighted content, both big and small.
Google’s
acquiescence to the
content industry is likely to become the industry standard – you must
filter out copyrighted content, regardless of whether you have
Google’s
resources to build your own filter.
The Supreme Court’s
decision in the
Grokster
case
said that it would look at a technology or software
manufacturer’s use
of filtering technologies as just one factor in determining whether
that manufacturer could be found to be illegally
“encouraging” or
“inducing” copyright infringement.
Google’s action today may have the
practical effect of changing filtering from “one”
factor” to “the”
factor that a court considers in deciding whether an innovator should
be liable for the copyright infringement of others.
Won’t Placate Viacom Etc
Doubtless that the content industry will crow about making
Google
blink, that it should have done this a long time ago, blah, blah, blah.
But nobody should kid himself or herself that this new system will
satisfy the industry or that Viacom will drop their lawsuit as a
result.
What the content industry wants is a system where all the
costs
of copyright enforcement are borne by others, and the user has no right
to contest. YouTube’s system requires copyright holders to
upload their
works to the reference database, which takes time and
resources.
And
the industry hates the DMCA notice and takedown not only because it
forces them to be on the lookout for infringing materials, but it gives
users equal rights to dispute the takedown.
The one silver lining we can see in today’s
announcement is that it
will bring home to many more YouTube users how copyright affects their
daily lives, and the tenuousness of fair use in the digital
world.
We’re urging Google to turn today’s
unfortunate
development into an
opportunity to teach the public about users rights and the value of
fair use to the free flow of information in a democratic society.
Gigi Sohn is a contributing author discussing matters relating to the broadband video and IPTV industry. Their work can be found on Public Knowledge. Post has Some Rights Reserved.
