Google Blinks, and Today the Internet is a Little Less Free

Just a few moments ago, YouTube introduced the beta version of its "video identification" system, the purpose of which is to control the amount of infringing material that appears on the site. Under enormous pressure from movie studios and record labels and their friends on Capitol Hill to filter out copyrighted material, and with the Viacom lawsuit looming, You Tube's parent Google has developed a tool that will likely restrict the flow of legal content over the Internet, and absolutely raises the bar for each and every entity that serves as a conduit for copyrighted works.

Here is how the system works: A copyright holder uploads its works into a reference database, which then generates identification files by which uploaded videos are matched. When a user uploads a video onto YouTube, that video is matched with the identification file. If there is a "match" (more on that later), then the video is subject to whatever action the rights holder has decided to apply to it; for example, it could be blocked, "tracked" or "monetized." If the video is blocked, the user will be notified, and can immediately contest the claim by clicking onto a link. Once YouTube receives the user contest, it will put the video back on the site. At that point, notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) would kick in. If the copyright holder continues to want the video removed, it would have to send a takedown notice required by the DMCA. The user can send a counter-notice, whereupon the video would be reinstated, etc.

This being the beta version of the system, there are still a lot of kinks to work out. Chief among them is the definition of what constitutes a "match." We were told at a briefing that a few seconds would be insufficient for a match, but not much else. Right now, YouTube limits videos to 10 minutes, but it seems unlikely that YouTube will adopt a minimum of that length. Where YouTube sets this minimum may be the single most important factor to determine whether there will be a proliferation of false positives, that is, legal content blocked by the copyright holder.

While YouTube should be be praised for making it easy for a user to contest a block, it should also recognize that permitting a copyright holder to have "block" as a default setting will likely limit the free flow of legal content over the Internet. Regardless of whether their use of copyrighted material is legal or fair use (such as commentary or criticism, which can legally use large portions of copyrighted works), many users will simply give up after being blocked (particularly if they fear a possible lawsuit). Or others may not bother to post to YouTube at all. This is why it is critically important that when YouTube sends notices to those users who do get blocked, that they also provide information about users rights, including fair use, so users can make an intelligent choice about whether to challenge their accusers.

YouTube was also not clear about exactly what it would mean for a copyright holder to be "tracked." Rights holders would have a special portal that would tell them how many times matched content is viewed and how many times their content is blocked. According to YouTube, the only personal information the rights holder would get is the email address of the user if they contest the blocking of information. But keeping in mind the recording industry's failed battle to get personal information about P2P file sharers from Verizon, you can believe that the content industry will want to use this tool to get as much personally identifying information as possible from YouTube.

What also causes us great concern is the effect that Google/YouTube's action will have on every other Internet conduit for copyrighted content, both big and small. Google's acquiescence to the content industry is likely to become the industry standard - you must filter out copyrighted content, regardless of whether you have Google's resources to build your own filter. The Supreme Court's decision in the Grokster case said that it would look at a technology or software manufacturer's use of filtering technologies as just one factor in determining whether that manufacturer could be found to be illegally "encouraging" or "inducing" copyright infringement. Google's action today may have the practical effect of changing filtering from "one" factor" to "the" factor that a court considers in deciding whether an innovator should be liable for the copyright infringement of others.

Doubtless that the content industry will crow about making Google blink, that it should have done this a long time ago, blah, blah, blah. But nobody should kid himself or herself that this new system will satisfy the industry or that Viacom will drop their lawsuit as a result. What the content industry wants is a system where all the costs of copyright enforcement are borne by others, and the user has no right to contest. YouTube's system requires copyright holders to upload their works to the reference database, which takes time and resources. And the industry hates the DMCA notice and takedown not only because it forces them to be on the lookout for infringing materials, but it gives users equal rights to dispute the takedown.

The one silver lining we can see in today's announcement is that it will bring home to many more YouTube users how copyright affects their daily lives, and the tenuousness of fair use in the digital world. We're urging Google to turn today's unfortunate development into an opportunity to teach the public about users rights and the value of fair use to the free flow of information in a democratic society.

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