by: Tony Bates, Associate Editor, MTTLR
YVI is also a terrible blow to utilize who use YouTube to upload their creative efforts as well as to the Internet community at large. Although YouTube has pledged that YVI will not “impede the free and fast communication YouTube has enabled,”23 it has yet to explain how it will allow for fair use of video material.24 Here’s how the system works: When a user uploads a video, that video is run through YVI to see if there’s a match with the content in its database. If so, the video is subject to the action the rights holder has decided to apply to it—it could be blocked, “tracked” or “monetized.”25 If it is blocked, the user can contest the decision and YouTube can put the video up. It is at that point that the DMCA takedown provisions kick in. If the copyright holder wants the video taken down, it can send a takedown letter to the user (as it would under the old system).26
This is problematic in two ways. Despite YouTube’s claims regarding “free and fast communication,” it will almost surely sweep in an unacceptable level of false positives.27 As a result, it will have the effect of stifling expression. YouTube is a haven for users who use copyrighted content to create new forms of expression,28 and the technology would have to be sophisticated indeed to not block these otherwise protected forms of expression. Of course, YouTube is not required to post a video just because it doesn’t infringe a copyright. Indeed, even if YVI sweeps in what would otherwise be protected video, YouTube may delete videos it even suspects of infringement. However, to do so would be to ruin what has made YouTube great for the online community: the democratization29 of creative expression by creating a repository for content that anyone can use. If faced with a notice from YouTube that their uploaded video may be infringing,30it is likely that many users may not be willing to “put themselves in the crosshairs of movie studio lawyers”31 and may instead decide to keep their expression to themselves.32
Electronic Frontier Foundation’s Fred von Lohmann has proposed two modifications to the system that would help protect fair users. The first is to require a video and an audio match before automatically blocking content.33 The second is to determine what ratio of the uploaded video is comprised of protected content—if the ratio is low, it is likely the post counts as transformative content.34 This is a step forward, but still leaves a lot of protected expression up in the air.35 Another possible solution—to add a human component to the review process—simply won’t do. YouTube is likely unwilling to open itself up to the liability that would occur if one of its reviewers green-lights a video that turns out to be infringing. It would also be too costly and time-consuming to personally review every movie that gets posted on YouTube. The best solution, it seems, is to continue to place the burden on copyright owners to find what they believe is copyright infringement and to allow them to follow the DMCA’s procedures. YVI places an extra burden on fair use that neither the courts nor Congress has required.
YVI is also an unnecessary and unfortunate step for Google because it does more than the law requires.36 A compelling argument can be made37 that YouTube falls well within the DMCA safe-harbor provisions.38 That is, even without YVI, YouTube could very well escape liability because of its substantial compliance with the DMCA. Viacom’s complaint is, at its heart, that YouTube is following the law too closely for its liking.39 Google’s decision to implement YVI is too large a concession to make to the copyright owners—Google is now the one responsible for finding infringing videos (and for creating and maintaining the software responsible), even though the DMCA places that burden on the copyright owners. Paradoxically, YVI could actually be used against Google: implementation of YVI shows that Google is well aware of the copyright infringement that exists on its website. By providing the filtration service, Google may be shouldering more responsibility than it’s prepared to take on. If YVI fails to flag a protected video, Google will have a harder time taking refuge in the DMCA’s safe-harbor provisions because the knowledge requirement40 clearly will have been met.
It is likely that, feeling the pressure from Viacom’s lawsuit, Google wanted to show that it was serious about copyright infringement on its website. YVI was a poor way to do this for three reasons. First, although the Supreme Court has implicitly favored attempts at filtration,41 it has by no means required it.42 Without other evidence of intent that the product be used to infringe, Grokster implies that filtration is unnecessary (although concededly helpful). Second, by implementing the software, Google may “have the practical effect of changing filtering from ‘one’ factor to ‘the’ factor that a court considers” in deciding this sort of infringement action.43 Because of Google/YouTube’s size and market presence, its decision to create YVI could likely become the industry standard. If that occurs, it will make it more difficult for smaller websites to host content because of the costs involved in developing or licensing filtration software. Third, YVI was a poor response to the Viacom lawsuit because it simply will not help Google fight claims of past infringement.44 Instead, this move looks like a signal of YouTube’s imminent decline. As copyright owners begin to develop their own content-distribution systems,45 it seems inevitable that users will begin to migrate to the websites hosting the popular content.46 YouTube became the market leader due, in part, to its hosting of copyrighted content.47 Without that content, YouTube must tread very carefully to avoid losing the users that have made it worth $1.65 billion. Implementation of YVI is a step in the opposite direction.
YVI is a bad solution for all parties concerned. I do not mean, however, to overstate the case against YVI. Undoubtedly, it will have a marked effect on cutting down on clearly infringing videos posted on YouTube, thus decreasing the number of separate acts of infringement against copyright owners. Instead, my argument is simply that YVI will not be completely effective against copyright infringement and that it is no greater a solution than the licensing system already in place.
It is also not the case that YVI will inevitably lead to the total downfall of YouTube: YouTube is popular, in part, because it is a common home for a wide range of wholly original works. YVI will surely not have an effect on that aspect of use. However, many YouTube videos incorporate copyrighted content into original works of creative expression. If one accepts the proposition that a great number of those works should properly be considered fair use,48 then YVI will end up imposing a large burden on this legitimate form of expression. Restrictions on the ability of users to use copyrighted content in the works they upload to YouTube will harm YouTube’s business model and the Internet community at large. Indeed, I believe that any undue difficulty in getting a legitimate fair use video past the system will have the ultimate effect of user migration.
This is not to say that it’s a bad thing to keep infringing works off the web: obviously, if a work is infringing it should be flagged and removed. I only mean to argue that YVI flags too much while, at the same time, failing to safeguard the interests of the copyright owners it was implemented to protect.
23 Nate Anderson, Filter This: New YouTube Filter Greeted by Concerns Over Fair Use, Ars Technica, Oct. 16, 2007.
24 Quinn, supra note 18.
25 Posting of Gigi Sohn to Public Knowledge Policy Blog (Oct. 15, 2007, 15:14 EST).
26 Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3)(a) (2006).
27 See Doctorow, supra note 17.
28 See Posting of Fred von Lohmann to EFF Deeplinks Blog, (Oct. 15, 2007).
29 For examples of this democratization phenomenon, see, e.g., YouTube.com, First Try (last visited Nov. 19, 2007) (80 year-old Peter seeks to “bitch and grumble about life in general from the perspective of an old person who’s been there and done that”); YouTube.com, Hamlet on the Street (last visited Nov. 19, 2007) (18 year-old actor Craig Bazan from Camden, NJ performs soliloquy from Hamlet).
30 For examples of videos that might get swept up by an overbroad filtration system, see, e.g., YouTube.com, Brokeback to the Future (last visited Nov. 19, 2007) (mashing together video and audio taken from Back to the Future and audio taken from Brokeback Mountain); YouTube.com, The Shining Recut (last visited Nov. 19, 2007) (re-editing video from The Shining with original audio).
31 Von Lohmann, supra note 28.
32 EFF has compiled a sample list of videos that would probably count as fair use but might get blocked by YVI. EFF, supra note 15.
33 See Von Lohmann, supra note 28.
35 See, e.g., YouTube.com, Vader Sessions (last visited Nov. 19, 2007). 100% of the video is taken from Star Wars and 100% of the audio is taken from films in which James Earl Jones appears. Both video and audio are presumably copyrighted, but the YouTube video would have a compelling fair use defense due to the parodic and transformative nature of the work.
36 See Quinn, supra note 18; YouTube Video Identification Beta, supra note 11.
37 See Posting of Oscar Lara to The MTTLR Blog (Nov. 15, 2007, 2:49 EST).
38 Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(1) (2006).
39 See Complaint at 3, Viacom International, Inc. v. YouTube, Inc., No. 07CV2103 (S.D.N.Y. March 13, 2007) (“[Y]ouTube…has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.”).
40 Digital Millennium Copyright Act 17 U.S.C. § 512(c)(1)(A) (2006).
41 See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 926 (2005).
42 See id. at 939 n.12.
43 Sohn, supra note 25.
44 See Andy Greenberg, YouTube’s Filter Fails to Please, Forbes, Oct. 18, 2007.
45 Viacom, for example, just posted every “Daily Show” clip in the Jon Stewart era on its own website: The Daily Show with Jon Stewart (last visited Nov. 19, 2007).
46 Viacom is also planning a similar website for “The Colbert Report.” Brian Stelter, ‘Daily Show’ Archives Appear Online, N.Y. Times, Oct. 18, 2007. This is to say nothing of underground content distribution networks like BitTorrent.
47 For example, note the surge in YouTube searches on Google after it began hosting Saturday Night Live’s Lazy Sunday on December 17, 2005. Search of “YouTube” on Google Trends (last visited on Nov. 17, 2007).
48 For a forceful argument of this proposition, see Kurt Hunt, Note, Copyright and YouTube: Pirate’s Playground or Fair Use Forum?, 14 Mich. Telecomm. & Tech. L. Rev. (forthcoming 2007).