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Friday, December 7, 2007

The Perils of YouTube Filtering: Part 1

by: Tony Bates, Associate Editor, MTTLR

The growing emergence of “Web 2.0”1 has caused an explosion in the amount of user-generated content that appears on the Internet.2 YouTube.com has revolutionized the way we watch some of this content online, by allowing users to upload video files stored on their computer and by combining social networking features with that video. Amazingly, over six hours of video are uploaded onto YouTube every minute.3 The success YouTube has enjoyed over the past few years has not been unnoticed—its user base is so lucrative that last year Google purchased YouTube for the princely sum of $1.65 billion.4 Given the activities of those users, however, YouTube has found itself the target of numerous lawsuits5 by copyright owners (the deep pockets of its new investor provide an additional incentive). Perhaps most notable is the lawsuit brought by Viacom: tired of filing DMCA takedowns for the over 150,000 unauthorized clips it claims are hosted by YouTube,6 Viacom is asking for $1 billion in damages for copyright infringement,7 despite YouTube’s removal of over 100,000 Viacom-owned videos in February.8

Viacom’s consternation is based, in part, on YouTube’s withholding, until now, of filtering technology that would ease Viacom’s burden of issuing DMCA takedown notices for infringing YouTube videos.9 YouTube has dragged its feet in implementing this technology claiming technical problems10 (it’s worth noting that YouTube has had no problem in developing a process that keeps pornographic videos from being uploaded) but did roll out a beta version of its new “YouTube Video Identification” (hereinafter, YVI) software just last month.11 YVI is the newest of several policies and tools YouTube has in place to limit the level of copyright infringement that takes place on its website.12 This new software, designed to facilitate the “free and fast communication YouTube has enabled”13 has been criticized by copyright owners as “too little, too late”14 and by copyright watchdogs as substantially overbroad.15 I would argue that not only is YVI a poor solution for both groups, it is also an unwise strategic move by Google.

1) Copyright Owners

Copyright owners like Viacom should be careful what they wish for—YVI shows they just might get it. Unfortunately for them, YVI is hardly the solution that copyright owners were hoping for. Although it may seem like a “logical way to try to balance the needs of users and copyright holders,”16 it actually imposes excessive burdens on copyright owners that will likely render the software ineffective. Cory Doctorow argues that it would be impossible to write a program that is able to spot all copyrighted works, as well as every “transformation, re-encoding, downsampling, and re-edit of those works.”17 If it is unable to do so, a large number of copyrighted works will fall through the cracks. This is practically guaranteed, when one considers the sheer amount of time and money it would take for a corporation like Viacom to turn in a copy of every copyrighted work it owns to Google.

Technological limitations aside, the program simply asks too much of copyright owners. YouTube wants the “content community” to “help [YouTube] help [the copyright owners]”18 by handing over to Google all of the copyrighted material they wish to protect. Google will then use the content repository to find works on its website that match up with the protected works in its database. By placing the onus to produce on the copyright owners, Google can claim that it's not their fault if their filtering software failed to catch the infringing content if the protected work isn’t in Google’s massive database. At the same time, copyright owners are extremely reluctant to hand over such a large amount of material to “the ultimate big brother.”19 Indeed, the system essentially establishes a two-tiered copyright system with respect to YouTube: those that have the means and the willpower to, in effect, register their copyrights with Google20 will receive protection, while those that fail to register will receive nothing. This does nothing to alleviate copyright owners’ concern that the current system, whereby YouTube offers filtration protection only to companies that sign licensing agreements, is also a two-tiered copyright system divided between those that play ball with YouTube and those that don’t.

One solution to this problem, proposed by Viacom, is to set up an industry-wide content repository instead of allowing content providers like YouTube to continue to develop proprietary systems of their own.21 One way to do this might be to add to the 1976 Copyright Act’s registration requirement: require also that a copyright holder place on file with the Copyright Office a digital copy of the protected content in order to commence an infringement action. The Copyright Office could then allow third parties like YouTube to use their filtration systems to match up posted content on the website with registered content at the Copyright Office. This would eliminate the “whack a mole” problem that currently plagues corporations like Viacom—as more websites roll out their own unique proprietary content filtration systems, copyright owners like Viacom are forced to keep up with each system’s requirements by handing over their content to each one.22 Of course, copyright owners might be nearly as averse to creating a database of content owned and controlled by the government as they are to creating one that Google controls. Still, with proper congressional oversight, the program seems more likely to win support from the corporate community.

Editor: Part 2 will consider the problems of filtering from the perpsective of users and Google. It will publish later today.

1  Tim O’Reilly, What is Web 2.0: Design Patterns and Business Models for the Next Generation of Software, O’Reilly, Sept. 30, 2005.
2  User-generated content is not a very well-defined term, but I won’t attempt to find an alternative here. I refer here only to that content that is published by those users who would historically not have had the means to publish the content in question and who would not have had access to the extremely large audience the Internet provides. See Jemima Kiss, The Trouble with "User" Generated Content, organgrinder, Jan. 3, 2007.
3  Richard Wray, YouTube Puts ID on Clips, Guardian Unlimited, Oct. 16, 2007.
4  Catherine Holahan, YouTube’s New Deep Pockets, BusinessWeek, Oct. 10, 2007.
5  Posting of Kurt Hunt to The MTTLR Blog (Nov. 14, 2007, 2:05 EST).
6  See Complaint at 2-3, Viacom International, Inc. v. YouTube, Inc., No. 07CV2103 (S.D.N.Y. March 13, 2007).
7  Frank Ahrens, Viacom Sues YouTube Over Copyright, Wash. Post, Mar. 14, 2007, at D02.
8  Viacom Sues YouTube for 1 Billion Dollars, Google Operating System, Mar. 13, 2007.
9  Posting of Admin to DailyTechRag (Mar. 12, 2007, 20:21 EST).
10  Id.
11  YouTube.com, YouTube Video Identification Beta (last visited Nov. 19, 2007).
12  Posting of David King to The Official Google Blog (Oct. 15, 2007, 14:01 EST).
13  YouTube Video Identification Beta, supra note 11.
14  Paul Sweeting, YouTube Filtering Draws Mixed Reviews, Content Agenda, Oct. 16, 2007.
15  See EFF, A “Test Suite” of Fair Use Examples for Service Providers and Content Owners (last visited Nov. 19, 2007).
16  David Kravets, Google Unveils YouTube Copyright Filter to Mixed Reviews, Wired Blog Network, Oct. 15, 2007.
17  Cory Doctorow, Why a Rights Robocop Will Never Work, Guardian Unlimited, Oct. 30, 2007.
18  Michelle Quinn, YouTube Unveils Copyright Protection Plan, L.A. Times, Oct. 16, 2007.
19  Sweeting, supra note 14.
20  Registration with the Copyright Office has not been required for copyright protection since 1976, although it is required if the copyright holder wishes to commence an infringement action. Copyright Act of 1976, 17 U.S.C. § 411 (2005).
21  Heather Havenstein, Viacom CEO Dismisses Google Antipiracy Plan, PCWorld, Oct. 20, 2007.
22  Erika Morphy, Google Shields Own Backside With Antipiracy Filter, E-Commerce Times, Oct. 16, 2007.

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