YouTube, Fair Use, and Automated Filters (Recent News)

In October, YouTube finally unveiled its anti-piracy filter that it began testing over the summer. While the move can be seen as a response to both the Viacom lawsuit and as an appeasement to content partners, the parties in the Viacom and Premiere League lawsuits are unimpressed.

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.