A host of media companies have launched a new push to force
user generated content sites such as YouTube to tighten up their
copyright controls.
Disney, CBS, NBC, and Fox, along with Microsoft, Veoh, and
Dailymotion, have jointly issued a document
they call “User Generated Content
Principles.”
In a nutshell, the
guidelines call for sites hosting UGC to automatically block content
that matches copyrighted material submitted by copyright owners to a
back-end database.
Nothing New
These aren’t new proposals—the studios
have been pressing for
automated filtering on YouTube and the like for quote some time now.
But the presentation of these proposals as a set of
“principles” is
new, and somewhat misleading.
Typically, we see voluntary guidelines issued by industry
groups as
a self-regulatory measure, to ensure best practices are followed in the
absence of regulation. But here, it’s not
self-regulation—the biggest
names in the UGC business aren’t there.
Google/YouTube, Facebook, and
Yahoo are all noticeably absent from the video sharing services, as are
a number of other channels for UGC, like blogs and other forums that
allow the posting of media. Those who are present are those who would
seek to regulate the business of others.
End Of Year Deadline
Another hint at the motivations behind this piece is the
presence of
a deadline—not normally something associated with a set of
best
practices. According to the document, UGC companies have to install
content filtering systems by the end of this year:
3. UGC Services should use effective content identification
technology
(“Identification Technology”) with the goal of
eliminating from their
services all infringing user-uploaded audio and video …To that end and
to the extent they have not already done so, by the end of 2007, UGC
Services should fully implement commercially reasonable Identification
Technology that is highly effective, in relation to other technologies
commercially available at the time of implementation, in achieving the
goal of eliminating infringing content.
After this, there is a detailed explanation of exactly how the
UGC
company should be filtering content, and the practices it should use to
interface with the content owners.
Now look towards the end of the
document, where it provides one of the few obligations of the content
companies—not to sue a UGC company that has met these
conditions and
continued to update and refine its filtering systems.
If a UGC adheres to all of these [13 preceding] Principles in good
faith, the Copyright Owner should not assert a claim of copyright
infringement against such UGC Service with respect to infringing
user-uploaded content that might remain on the UGC Service despite such
adherence to these Principles.
Taken all together, this looks more like a list of demands
accompanied by an implied threat of suit if they are not met.
It’s also interesting to see the contrast between
this agreement not
to sue and the introduction of the piece, which explicitly says that
the “principles” don’t mean they
won’t sue you anyway:
While we may differ in our interpretation of relevant laws, we do not
mean to resolve those differences in these Principles, which
are not intended to be and should not be construed as a concession or
waiver with respect to any legal or policy position or as creating any
legally binding rights or obligations.
The document also continually refers to the
“elimination of all
infringing content,” despite an early admission that there
can be no
perfect system. Of course, as has been
pointed out before,
a perfect system would block all infringing content and allow all
lawful content.
False Positives Over False Negatives
While it’s nice to see the content industries admit
that this is impossible, it looks like they’re entirely
willing to
favor false positives over false negatives. If they are continually
trying to eliminate all infringing content, imperfectly, then what
allowances do they make for fair use?
None that I can find in the
document. Aside from making mention of the doctrine’s
existence and the
need to “allow” it, no provisions or incentives to
preserve users’ fair
use rights make an appearance.
The only specific user-oriented
provision merely recites the fact that users have the right to
counter-notice if their material is improperly taken down—an
obligation
already built in to the DMCA.
In a way, this merely reflects the priorities of the parties
issuing
this document—five of the largest content companies in the
world (and
one of their subsidiaries), a couple of UGC startups, and
Microsoft.
Smaller companies are more susceptible to pressure from
litigation
threats from media giants, and are likely willing to accede to demands
like these to assure investors that capital won’t be lost to
Hollywood
litigation.
Veoh is likely under dual pressure, given both its
connections with Time Warner and its history of litigation with
Universal. Microsoft is something of the odd one out, but given the
minuscule market share of Soapbox, what have they got to lose but risk?
No Mention Of The Users
Another big party to the user-generated content revolution is
missing from this document—the user. As drawn up by Hollywood
and a few
cowed tech sites, the principles are all about what is convenient or
desirable for those particular parties.
The lack of attention paid to
fair use, or any procedures relating to users (there’s a
similarly
brief mention of counter-notification that’s already required
under the
DMCA), it’s clear that this document was created more to
stake out a
policy position than to provide a real way forward.
So why should we care about this document, if it’s
merely the same old story, framed differently? For the same reason that
Google’s
recent caving
is a cause for concern.
By framing these asks as principles, the
content industry seeks to change the norms around the debate, and make
filtering seem like an obligation. After all, if Google and Microsoft
are doing it, why aren’t you?
Sherwin Siy is a contributing author discussing matters relating to the broadband video and IPTV industry. His work can be found on Public Knowledge. Post has Some Rights Reserved.
