Thursday, March 22, 2007

Problems with Filtering Copyrighted Material

A recent story described how a doctor was upset that YouTube restricted access to his videos instructing women how to give themselves breast exams to users 18 years of age and older. It is, after all, surprisingly difficult to find porn on YouTube and this makes clear that YouTube has some sort of filtering system to handle such videos. One of Viacom's complaints is why YouTube can't do for Viacom what it does for porn, namely have it removed. While "I know it when I see it" (Potter Stewart, Jacobellis v. Ohio [1964]), works for porn, it does not work for copyright.

Viacom's lawsuit accuses YouTube of not doing a good enough job identifying and removing videos that are subject to copyright. While YouTube can argue that it is covered by the safeharbors of DMCA 512(c), it loses safeharbor protection if it has either actual knowledge or constructive knowledge that infringing videos have been uploaded to its site and it has done nothing to remove them. The question is whether knowing that a Viacom clip is available on YouTube is actual or constructive knowledge of infringement. One interesting issue in assessing YouTube's knowledge is that, sometimes, companies sometimes upload their own content only to have their lawyers demand that YouTube remove it.

Viacom's position is that YouTube (and everyone else) know that Viacom's copyrighted material is available on YouTube and that YouTube has a duty to remove it. YouTube's position is that the DMCA imposes no duty on it to constantly police its site, such that it is following the letter of the law by waiting for Viacom to file takedown notices.

Now, by the very nature of being a video hosting site, YouTube knows that it does not have the copyright to any video that users upload: every video is potentially infringing. Also, some people would believe that it's simply common sense to assume that a clip of a Viacom show on YouTube is per se copyright infringement. But the central problem here is that whether a video infringes copyright is a rather technical question that can't effectively be answered by a keyword search through YouTube.

Case in point, the Viacom property Adult Swim had its marketing department upload several clips of its shows to YouTube for promotional reasons, hoping the clips would be forwarded around and get more people watching them on TV. Some of their own lawyers came across those clips and sent takedown notices to YouTube.

NBC's marketing department has been doing the same, uploading promos for Heroes that contain no information tying them back to NBC. The move:
was so clandestine that [Vince] Manze says he didn't even tell "Heroes" creator Tim Kring about "Zeroes." Keeping the clip's origins a secret was a means of building up its credibility with potential viewers.
The extent of this 'lawyers going DMCA on their own marketing department' phenomena is unclear, but what is clear is that these instances can't be classified as infringement in the first place. I mean, can Viacom or NBC infringe on their own material? To be fair, I don't think Adult Swim has much contact with their lawyers anyway, but in this context, is that YouTube's fault?

These two examples help illustrate a point about the ease or difficulty in deciding whether a video is infringing. Whatever filtering system Viacom thinks YouTube should use, it would not be able to distinguish a video that was uploaded by some college student from the same video being uploaded by that company's marketing department. The college kid has infringed, the marketing department has not, but how is YouTube or any other site supposed to know that?

The simple solution would require marketing departments to set up and register accounts with YouTube, such that copyrighted videos could be filtered based on the accounts that uploaded them. Whether this would be effective from a marketing standpoint is debatable. That marketing departments seem to recognize that videos need street-cred to be successful indicates that it would not.

But these examples are fairly straightforward in that simply knowing who uploaded the video solves the problem of assessing whether a video is infringing or not. If you've followed the EFF's recent challenges to Viacom's DMCA practices, however, you would know that the issue of knowledge is a bit trickier.

First, Viacom's avalanche of takedown notices (over 100,000) sent to YouTube weeks before it filed its lawsuit swept up around 60 user videos that Viacom did not have the rights to and had no basis for demanding that they be taken down. The EFF is said to be preparing a suit against Viacom for not following the DMCA, which clearly states that a sender of a takedown notice must include:
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The EFF has pursued these types of cases before against Diebold and the SpankMaker.

Second, the EFF today filed a federal lawsuit against Viacom demanding a video that was subject of a takedown notice be declared non-infringing because it is a parody. The video itself is best described by BoingBoing:
a hilarious spinoff of Stephen Colbert's 'Green Screen challenge' which had him fighting an army of Nancy Pelosi clones, created entirely within Second Life. It included a 15 second section of avatars *watching* the 'Colbert Report' from within Second Life, but the rest of the 90 second, CC-licensed video is all original content and clearly parody, both of the show and the American political scene.
The video itself is still available here. Here you have a video that not only is most likely fair use, but which also was solicited in part by Viacom as part of Colbert's Green Screen Challenge. Whether this video is fair use or copyright infringement I won't say, but would would YouTube know? Should YouTube be responsible for making that legal determination (which is what the decision is)? Would a filter know the difference?

Both of these cases illustrate how seemingly legitimate videos were taken off-line. The principles of free speech and fair use certainly seem applicable here and people should have the opportunity to challenge their classification as an infringer. After all, isn't this issue of process the central sticking point in the enemy combatant debate?

Whether or not YouTube has sufficient knowledge, whether actual or constructive, of infringing videos on its servers is a difficult question. However, just because a filter, human or automated, can identify porn and remove it does not mean that such a system would be effective in preventing copyright infringement. In the end, Viacom's lawsuit claims that the DMCA has shifted too much of the copyright enforcement burden onto copyright owners by means of the notice and takedown procedure. They want filters or for YouTube to actively police it's site. In effect, this would reduce the burden of filing takedown notices on Viacom while placing the burden of making a legal determination of each uploaded video on YouTube. Given the often complicated nature of deciding whether a given video is infringing, the questions ought to be who is in the better position to know and who should be responsible for making these legal decisions. If a user can't share a video that they have the legal right to create and distribute, is the proper target of their legal ire Viacom, which owns the rights and is the only entity that has a right to object, or YouTube, which is simply acting as an Internet host?

In short, the argument that YouTube already filters porn is nothing more than a red herring and the burden of identifying infringing videos should be placed on Viacom, even if only because they should be held to answer if a video is a legitimate use copyrighted material.
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