Saturday, November 10, 2007
Friday, November 02, 2007
YouTube, Fair Use, and Automated Filters (Recent News)
Shortly after YouTube announced its filtering technology, an alliance of major media companies (CBS, Dailymation, Disney, FOX, Microsoft, MySpace, NBC/Universal, Veoh, and Viacom) issued their Principles for User Generated Content Services, clearly aimed to make YouTube and others aware of what they expect from such video sites in terms of copyright enforcement through filtering. Notable in the guidelines is the desire for sites to block infringing videos before they are uploaded, rather than an after upload inspection (which is what YouTube's filter does).
Of course, for any filtering system to be effective it needs to block all infringing videos, accept all videos that are not infringing, and cost less to develop than the "harm" caused by the infringement it seeks to stop. Anything less than perfect creates loopholes that people will exploit, making the system wildly ineffective.
Because the major content alliance's guidelines give only passing mention to fair use principles and represent a preference for erring on the side of labeling innocent videos as infringing, the EFF, together with the ACLU, Public Citizen, and the Berkman Center, issued their own Fair Use Principles for User Generated Content this week. Since an automatic filter can't understand fair use, the EFF argues that that if a filter can't determine that 1) a video matches a fingerprinted video, 2) its audio also matches the fingerprinted video, and that 3) at least 90% of the video comes from the same source, then a human being needs to step in and make a decision. The fear is that legitimate videos will be blocked by over-zealous copyright filters, causing potential First Amendment problems and endangering Internet creativity.
The YouTube filter is configured to match uploaded videos with a database of copyrighted videos. A copyright owner need submit their works to YouTube for indexing, which allows the site to know what videos to look for. The copyright owner then can decide what to do with videos that match theirs, whether allow (and even get ad revenue from it) or block.
And not surprisingly, copyright owners are annoyed by this system because they still have to do some work to have their copyright protected by sending them to YouTube for indexing. It does seem like an odd proposition to ask copyright owners to send copies of their works to a website that they view as facilitating copyright infringement in order to stop said infringement, but that's the deal. No word yet on how effective the filter has been so far nor how many copyright owners have submitted material for inclusion.
Regardless of one's view on copyright, everyone recognizes that there is in fact a balance between a copyright owner's right to exploit its work and the public's right to consume and use that work for other purposes. A filter would clearly help stamp out all blatant forms of video piracy on YouTube. The question here is what happens to those videos that are neither here nor there and exist in the gray area of fair use, where some copyrighted content is used in such a way that that the owner has no right to complain about? The EFF has provided an excellent list of videos that exist in the fair use gray area. A person would be hard pressed to say definitively that any of these videos are either infringing or are covered by fair use (even a lawyer), so it seems silly for people to expect a filter to.
Thursday, November 01, 2007
Viacom v. YouTube Discussion
William wrote in to provide a link to a video of a symposium on the Viacom v. YouTube case, sponsored by Santa Clara High Tech Law Institute. The speakers (Fred von Lohman, Tyler Ochoa, Mindy Morton, and Jenny Lynn Cox) provide in depth coverage of the lawsuit, DMCA 512 and the state of the law in this area, and the policy questions raised by the suit. There's pretty much nothing that the group leaves out. It's long, but if you follow the link to the site you'll find the video is broken down into sections for each topic.
As an aside, the video is hosted at fora.tv and, at first blush, looks to be a fine website for video.
Monday, October 29, 2007
Tur Gets Dismissed in Suit Against YouTube
Before the dismissal, there was the likelihood that Tur's case would be resolved before the Viacom and the Premier League suits, meaning that whatever the Tur court decided would have at least some relevance on the others. Now, with Tur's case out of court, it appears that the Viacom case is the front runner to finally answer the question of whether YouTube falls under the DMCA's safe harbors.
Why did Tur drop his case? The simple answer would be that, by joining the class action he no longer needs to financially support his case by himself (Google reportedly had already expended around $370,000 in legal fees in the case). The more intriguing answer, however, is that Viacom may have played a role in convincing Tur to step aside:
But despite the judge's decision, the question still remains about whether Tur ceded the case to Google's two major Internet video rivals. In an interview Tuesday, Tur's attorney, Francis Pizzulli, said he indeed did get help from others, but refused to identify who helped him, and the extent of their role.Remember that Viacom and NBC sought to file amicus briefs in the case this past May. Ultimately NBC was allowed to file, but Viacom's request was rejected by virtue of its case pending in New York. According to allegations made by Google lawyers:
"We have received help from various quarters, but I'm the one ultimately responsible," Pizzulli said. "We won. We don't have to pay a red cent over to Google."
The judge's Friday order lets Tur join another pending class-action lawsuit against YouTube, this one led by the U.K.'s Football Association Premier League. Pizzulli said he's in the process now of transferring the Tur case over.
A YouTube spokesman said the company is going to review the judge's order and then "consider our options."
So it's official. Viacom will get the chance to bring down YouTube, if it can and if the two sides don't settle. Based on recent comments in the media, a settlement doesn't seem likely even despite the new YouTube filter.
"This is a case that has been commandeered by others for their own purposes, leading to remarkable machinations over an extended period creating hundreds of thousands of dollars in added expense for YouTube," YouTube's lawyers had recently told a judge.
Perhaps the most sensational of the allegations Google raised in its arguments was how some of Tur's own legal briefs in the case appear to have been ghostwritten by attorneys for Viacom and NBC.
"The style and rhetoric" of some of Tur's documents were "unmistakably similar" to paperwork Viacom and NBC proposed to file later in the case, Google attorneys argued at one point.
Monday, August 13, 2007
Viacom v YouTube Depositions
Assuming they are actually deposed (no guarantees that Viacom lawyers won't try to block these requests as irrelevant), it's not clear how much effect it will have, if any. I would suppose YouTube is hoping that Stewart and Colbert both say that YouTube is a boon for them and they have no problems with their clips on the site, thus challenging Viacom's claim that it will be irreparably harmed if YouTube isn't shut down. Then again, never bite the hand that feeds you; don't be surprised if the two stars temper their opinions and hew as close to the company line as they can without completely contradicting their previous support for YouTube.
Will either of them do for YouTube what Mr. Rogers did for the VCR? It's fun to imagine Mr. Colbert filling Mr. Rogers' shoes as the savior of great new technology and I can easily envision his character claiming credit for saving the Internet and the lives of millions of bored teenagers worldwide. We did it!
But this is all speculation because who knows if they will end up being deposed, what they'll say if they are, and whether a court ends up paying much attention to their thoughts anyway. The more entertaining kind of speculation revolves around whether Colbert would show up to a deposition in character. That would totally rock.
Wednesday, June 13, 2007
The reason is that, having graduated, studying for the bar has been taking up much of my time and has interrupted my blogging rhythm. This will be corrected starting this weekend. Thanks for your patience and I hope to have some good stuff for you soon.
Monday, May 07, 2007
Viacom and NBC Want Amicus Briefs in Tur v YouTube
That Viacom and NBC want to file amicus briefs isn't a surprise. Since the Tur suit is the farthest along (we're just waiting for the court's decision on summary judgment) and deals with the central question of whether YouTube complies with the DMCA, the outcome of the case will influence what happens with Viacom and the Premier League.
If YouTube is found to qualify for DMCA safeharbor protection in Tur, it may be difficult for Viacom and the Premier League to argue that YouTube isn't covered. This may be why Viacom didn't even mention the DMCA in its suit, so as not to be repeating Tur's argument if he ends up losing.
Then again, Viacom and the Premier League brought suit in New York and New York is not bound by what the courts in California decide. However, the Southern District would certainly have to address the decision in Tur and give it some weight and conflicting decisions on YouTube's safeharbor status would pave the way to the Supreme Court. Because a win for YouTube against Tur will make things more difficult for Viacom, and NBC probably wants a better deal without the expense of litigating itself, it's a no-brainer for them to do what they can to help Tur win his case.
Friday, May 04, 2007
Premier League Complaint
YouTube Sued Over Soccer Clips
The league reportedly has a billion plus broadcasting deal with Sky, a deal with foreign broadcasters for 320 million, and has been active going after sites that offer video of league matches in violation of mandated blackout periods intended to increase attendance at games.
While this appears to be an attempt, just like the Viacom suit, to avoid the DMCA issue of whether YouTube qualifies for a safe harbor, it's worth pointing out that the international aspect of this case will raise some interesting questions. The DMCA doesn't apply in England, so if the videos are uploaded there, YouTube's liability would depend on the law in England. Even worse, if the videos are uploaded in the US, but are accessible in England, YouTube might be subject to English law for when those videos are viewed there. I am unfamiliar with any cases dealing with 512(c) and extraterritorial copyright claims, so this should sure be interesting to see how this plays out.
More to come for sure once I find a copy of the complaint.
Thursday, May 03, 2007
Belgian Newspapers Back on Google
The case comes down to Google's caching of the newspapers' archives. While the newspapers at issue initially offer their content for free, they charge for access to their archives. Their complaint against Google was that their articles were being cached and delivered to users after the point where the papers began charging for them. While the case implicates the issue of whether Google News needs to pay newspapers for simply linking to their stories, the central sticking point (and presumably why the lawsuit was filed in the first place) was Google's providing articles for free that the papers were charging for. After their loss in a Belgian court, Google removed all links to the newspapers, even to their homepages in the search results.
It now appears that a deal of some sorts has been struck as the newspapers are back in Google's search results, but there is no access to cached versions of articles. The technical fix is the use of the "noarchive" tag, used by other papers such as the NYT to prevent their articles from being archived in the Google cache. Ironically, Copiepresse originally balked at being forced to use such a self-help measure, arguing that Google couldn't impose this on copyright owners.
Common sense would suggest that NOT being in the Google index was hurting the newspapers far more than having Google cache and serve up paid content. Because of the characteristics of Belgian law, the decisions against Google were never that bad because they were confined to the parties involved (Google didn't need to make wholesale changes to Google News) and the decision carries no value as precedent (that's how it works there). So, when sued, Google was forced to remove all traces that these newspapers even exist and they have now come back to Google to be indexed.
While Google may have lost in court, it appears that their search business has been further validated by Copiepresse's apparent concession that it can't afford not to be indexed. Google's opt-out policy ("we will index and cache everything unless you stop us") appears, in the end, to have prevailed because that is exactly what Copiepresse has had to do to get back into Google's search results.
Any greater implications for this are unclear. While this was a peculiar case dealing with foreign law and the Google cache, the underlying theme is that content owners should avail themselves of the self-help mechanisms that do exist if they don't want Google indexing and caching their stuff. In the context of Book Search, that means opting-out of the program. With YouTube, that means following the DMCA takedown procedures. Book Search and YouTube are different from this situation, but Google's approach is the same: we're going to serve up what we can find online so defend it with easy to implement tags (robots.txt, noarchive) or ask us to remove it.
Monday, April 30, 2007
Wednesday, April 25, 2007
Another Suit Over Indexing
Obviously, CDA 230 immunity comes into play here, which immunizes a service provider for providing the defamatory content of another. And it's also worth noting that the contractor even admits that the project the comment references did in fact lead to litigation over shoddy work. Sure, having the second Google result for a search for your company be an embarrassing comment that will cost you business is bad. Is that Google's fault?
Two things to remember here. First, the Internet means that it's a lot tougher to hide your mistakes. Second, be careful that you don't draw more attention to yourself when you sue than if you merely accepted a snarky comment in Google's search results as a fact of life. When you search for the contractor's firm now, scores of blog posts referencing this story in the search results, in addition to the original post (though down to #6 as of this writing).
Tuesday, April 24, 2007
Torture and Copyright
If I were a law professor, I would surely give my students this question on an exam and watch them cry.
Monday, April 23, 2007
Viacom Admits Errors in Colbert Takedowns
In order to prevent errant takedown letters, Viacom says that it will manually review questionable videos and make sure its employees know about fair use and DMCA abuse. The company will also set-up a website and "email hotline" dedicated to complaints about DMCA issues. Not surprisingly, Viacom is spinning this as validation of "the effective processes we have consistently applied."
This seems like a nice touch, Viacom setting up a way for people to complain about erroneous takedowns, but it's also troubling. The DMCA already provides for parties like MoveOn.org to file counter-notices with YouTube if they believe their content is improperly taken down. This settlement appears to avoid that whole process. It seems up to dispute whether this is a boon for the rest of us or a weakening of the DMCA.
Monday, April 16, 2007
Automation in Takedowns
Macgillivray then states that if YouTube were trying to make a business off of copyright infringement, it wouldn’t be doing all that’s doing now to curb infringement. First, he claims that they have the best DMCA notice/takedown procedure online — the turnaround is quick and automated.Wait, what? An automated notice and takedown procedure?
I must admit, and am embarrassed to say so, that an automated notice/takedown provision is not something that had ever occurred to me. It strikes me as obvious now. It also raises some interesting questions about the DMCA, automating legal processes, and the Viacom/YouTube spat.
First, the provisions on the notice and takedown procedure in DMCA 512(c)(3) are ideal for being handled by an automated process. A copyright owner need provide an ISP with a description of the owner's work, an identification of the alleged infringing work (a URL normally suffices), as well as an address and statements saying that they own the copyright and that the use is infringing. As far as an ISP is concerned, the URL is all that matters in the notice as identifying the URL and disabling access to it can be easily automated and free up employees from handling these tedious and repetitious tasks.
Not only is there a standard form for DMCA notices, but the incentive structure of the DMCA further encourages automation. DMCA 512(c) says that an ISP will not be held liable for monetary, injunctive, or other equitable relief for copyright infringement so long as the ISP "responds expeditiously to remove, or disable access to, the material." Further, under 512(g), the ISP is also immune for disabling access to material pursuant to an illegitimate takedown notice. Thus, an ISP is encouraged to takedown videos at a copyright owner's say-so and are immune from suit if it turns out the copyright owner is abusing copyright.
It is obviously more efficient if YouTube and the like can automate this notice and takedown process, rather than pay people to read over these letters and manually remove the videos. Based on the structure of the DMCA, there's no doubt that a human would decide, or be ordered to by a boss, to behave in the same way and to disable access to any material that is identified in a takedown notice. If the takedown notice is flawed in some way, either because the notice wasn't sent by the copyright owner or because the material is outside of copyright (eg. fair use), that's not the ISP's problem. The user can request to have the material restored or can bring the issue up directly with the alleged copyright owner. There's nothing for the ISP to do but take the material down.
This automatic removal of material seems troublesome in this context because of the interest in free speech. People are allowed to make a fair use of another's copyrighted content and depriving people of that ability raises a concern about people being able to freely express themselves. I refer you to the EFF's suit against Viacom for removing a YouTube video that made use of some Colbert Report images to poke fun at the icon and MoveOn.org. If a person with rudimentary knowledge about copyright law saw that takedown notice and then watched the video, it is highly possible the video would have stayed and the lawsuit could have been avoided. Instead, this funny video that satirizes current political and entertainment figures was essentially censored.
And it's not just the takedown notices used to push the bounds of what is covered by copyright that cause problems. Just this weekend it was reported that a 15 year-old sent takedown notices to YouTube to remove Australian Broadcast Company videos. The kid claimed in his notice that he represented ABC and, of course, the authorized videos were disabled. Might a human agent be able to make sure takedown notices are actually coming from the entities they claim? Is the cost of doing so worth it for an ISP like YouTube given they have no incentive to do so and face no liability for immediately removing the video?
Granted we are talking about video clips, a few minutes long, that may be of low social or personal significance. But this kind of automated legal process, where legal rights are determined by algorithm and no human intervention, can potentially reshape copyright law and its volumes of intricate analysis meant to draw lines between acceptable and unacceptable behavior. It's the privatization of law, taking it away from neutral magistrates entrusted with applying the law. The automation of YouTube's notice and takedown process may just be an isolated case of using technology to create efficiency with a minimal loss of rights, but a slippery slope argument could be made that lots of entities would like to see these same kinds of efficiencies (notably roving internet wiretaps and data-mining that can be used to trigger criminal investigations).
Whether the sky is falling is not for this post, but the issues raised by the automation of the notice and takedown process does have implications for the Viacom/YouTube lawsuit.
YouTube's hands off approach to these notices highlights the fact that the dispute over unauthorized videos really lies between copyright owners and the videos themselves. There's a reason why the DMCA was structured as it is to remove from ISPs the burden of making legal judgments about whether a takedown notice is legit or not. It's a tough call (could be fair use) and inefficient to thoroughly research (could be a 15 year-old kid or my dog sending the notice, how much money should an ISP spend to find out). If removing this burden was important to the drafters of the DMCA, then why should YouTube be burdened with monitoring for copyrighted videos (essentially the same as making legal judgments on takedowns) when the DMCA pretty much says that the notice and takedown procedure is a copyright owner's only avenue for redress?
Because the DMCA strives to turn an ISP like YouTube into a mere repository of user submitted videos, it's pretty clear that lawsuits should be going from copyright owners directly to the users uploading the videos. The structure of the DMCA encourages this result: the copyright owners sends a takedown notice to YouTube, who removes the video; if the user objects, a counternotice is sent to YouTube; if the copyright owner doesn't object to the counternotice the video goes back up, if it does object, the parties end up in Federal Court. In the end, the DMCA gets the copyright owner and the user into court and leaves YouTube alone to continue offering its service.
In short, that YouTube has an automated notice and takedown process shows that YouTube is avoiding making legal determinations about the videos on its site. This process could only be automated if the DMCA was so structured as to make it a reasonable thing to do. That the DMCA, by its words, aims to remove the burden of making these legal determinations from YouTube and works to bring the copyright owner and users into court would suggest that YouTube is following the DMCA in respect to Viacom's videos. If Viacom has issues with YouTube, those issues could be better characterized as being with the DMCA itself. Viacom's own interests in protecting its business model and keeping its big brand advertisers happy (by preserving their business model of controlling the context of their ads) almost require that it do something to change the video landscape. Viacom would be better off lobbying for new legislation than suing YouTube, which appears to be following a law that basically orders it to behave this way or get sued to death. Oops.
Lawyers Discussing GooTube in Public
Tuesday, April 10, 2007
Schmidt on Viacom (and other stuff too)
So why did Google even bother with the legal hassle that YouTube has become?
Wired: Viacom’s argument is that you’re not working hard enough to keep infringing clips off of YouTube.
Schmidt: Well, if they would look at the law, they’d understand that under the Digital Millennium Copyright Act, there’s a shared responsibility. The law says that the copyright owner monitors -- and then we expeditiously remove -- offending clips. We’ve done that. In fact, YouTube’s traffic has grown since we did. So Viacom’s argument that YouTube is somehow built on stolen content is clearly false.
Schmidt: Because we think it’s fantastic... Video is something that we think is going to be embedded everywhere. And it makes sense, from Google’s perspective, to be the operator of the largest site that contains all that video.
Obviously, we would like to include licensed, copyrighted content -- legally -- and then make money on it. But YouTube itself can pay off -- and this is where the critics get it wrong -- in simple searches. Because, remember, when you go to YouTube, you do a search. When you go to Google, you do a search. As we integrate those searches, which we’re working on, it will drive a lot of traffic to both places. So the trick, overall, is generating more searches, more uses of Google.
Monday, April 02, 2007
Guitar Tabs are Back
The licensing deal provides that Harry Fox and Musicnotes will share the ad revenue from the site, ensuring that Harry Fox gets paid, presumably to funnel that money back to its artists (though there is no mention of whether the licensing money will make it back to the artists themselves).
Most interesting, however, is that the deal adopts an opt-in approach where tabs will only be put up on MxTabs after individual artists have assented to the tablature of their music being posted. This necessarily means that the selection on MxTabs will be spotty, unless Harry Fox is able to get agreements from its artists by the time the site opens. Nevertheless, some artists will be left out as it seems improbable that Harry Fox will be able to reach agreements with all of the artists whose music was on MxTabs prior to its closing last summer.
Of course, this opt-in approach is precisely what Google is fighting against in its negotiations with the Author's Guild over book search. Now that the MPA and Harry Fox have established an opt-in system for tab, surely the Author's Guild will use this to support its position that an opt-in system is both preferable and an adequate solution to copyright problems associated with indexing collections of copyrighted material.