Editor: Part 1 introduced the emergence of filtering as a potential solution to copyright and infringement, and examined why it fails copyright owners. This part considers the problems of filtering from the perpsective of users and Google.

2) Users

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.

3) Google

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.

4) Conclusion

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.

The growing emergence of “Web 2.0”¹ has caused an explosion in the amount of user-generated content that appears on the Internet.² YouTube.com has revolutionized the way we watch some of this content online, by allowing users to upload video files stored on their computer and by combining social networking features with that video. Amazingly, over six hours of video are uploaded onto YouTube every minute.³ The success YouTube has enjoyed over the past few years has not been unnoticed—its user base is so lucrative that last year Google purchased YouTube for the princely sum of $1.65 billion.⁴ Given the activities of those users, however, YouTube has found itself the target of numerous lawsuits⁵ by copyright owners (the deep pockets of its new investor provide an additional incentive). Perhaps most notable is the lawsuit brought by Viacom: tired of filing DMCA takedowns for the over 150,000 unauthorized clips it claims are hosted by YouTube,⁶ Viacom is asking for $1 billion in damages for copyright infringement,⁷ despite YouTube’s removal of over 100,000 Viacom-owned videos in February.⁸

Viacom’s consternation is based, in part, on YouTube’s withholding, until now, of filtering technology that would ease Viacom’s burden of issuing DMCA takedown notices for infringing YouTube videos.⁹ YouTube has dragged its feet in implementing this technology claiming technical problems¹⁰ (it’s worth noting that YouTube has had no problem in developing a process that keeps pornographic videos from being uploaded) but did roll out a beta version of its new “YouTube Video Identification” (hereinafter, YVI) software just last month.¹¹ YVI is the newest of several policies and tools YouTube has in place to limit the level of copyright infringement that takes place on its website.¹² This new software, designed to facilitate the “free and fast communication YouTube has enabled”¹³ has been criticized by copyright owners as “too little, too late”¹⁴ and by copyright watchdogs as substantially overbroad.¹⁵ I would argue that not only is YVI a poor solution for both groups, it is also an unwise strategic move by Google.

1) Copyright Owners

Copyright owners like Viacom should be careful what they wish for—YVI shows they just might get it. Unfortunately for them, YVI is hardly the solution that copyright owners were hoping for. Although it may seem like a “logical way to try to balance the needs of users and copyright holders,”¹⁶ it actually imposes excessive burdens on copyright owners that will likely render the software ineffective. Cory Doctorow argues that it would be impossible to write a program that is able to spot all copyrighted works, as well as every “transformation, re-encoding, downsampling, and re-edit of those works.”¹⁷ If it is unable to do so, a large number of copyrighted works will fall through the cracks. This is practically guaranteed, when one considers the sheer amount of time and money it would take for a corporation like Viacom to turn in a copy of every copyrighted work it owns to Google.

Technological limitations aside, the program simply asks too much of copyright owners. YouTube wants the “content community” to “help [YouTube] help [the copyright owners]”¹⁸ by handing over to Google all of the copyrighted material they wish to protect. Google will then use the content repository to find works on its website that match up with the protected works in its database. By placing the onus to produce on the copyright owners, Google can claim that it’s not their fault if their filtering software failed to catch the infringing content if the protected work isn’t in Google’s massive database. At the same time, copyright owners are extremely reluctant to hand over such a large amount of material to “the ultimate big brother.”¹⁹ Indeed, the system essentially establishes a two-tiered copyright system with respect to YouTube: those that have the means and the willpower to, in effect, register their copyrights with Google²⁰ will receive protection, while those that fail to register will receive nothing. This does nothing to alleviate copyright owners’ concern that the current system, whereby YouTube offers filtration protection only to companies that sign licensing agreements, is also a two-tiered copyright system divided between those that play ball with YouTube and those that don’t.

One solution to this problem, proposed by Viacom, is to set up an industry-wide content repository instead of allowing content providers like YouTube to continue to develop proprietary systems of their own.²¹ One way to do this might be to add to the 1976 Copyright Act’s registration requirement: require also that a copyright holder place on file with the Copyright Office a digital copy of the protected content in order to commence an infringement action. The Copyright Office could then allow third parties like YouTube to use their filtration systems to match up posted content on the website with registered content at the Copyright Office. This would eliminate the “whack a mole” problem that currently plagues corporations like Viacom—as more websites roll out their own unique proprietary content filtration systems, copyright owners like Viacom are forced to keep up with each system’s requirements by handing over their content to each one.²² Of course, copyright owners might be nearly as averse to creating a database of content owned and controlled by the government as they are to creating one that Google controls. Still, with proper congressional oversight, the program seems more likely to win support from the corporate community.

Editor: Part 2 will consider the problems of filtering from the perpsective of users and Google. It will publish later today.

Google and YouTube are currently facing a class action lawsuit for copyright infringement. Among the parties claiming infringement are the Football Association Premier League, England’s most popular soccer league, and Viacom, which owns MTV and Comedy Central. The result of this lawsuit could change the way the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) are examined.¹ In this case, a liberal reading of the statute would benefit the public.

The heart of the claim is that YouTube infringes the copyrighted works uploaded by altering the posted videos.² It is also alleged that YouTube secondarily infringes these works by promoting these infringing uses, receiving advertising revenue through these infringements, and by not implementing reasonable measures that could eliminate or reduce the uploading of infringing works.³ Google and YouTube respond that they do not infringe because they remove the copyrighted works as soon as they are notified.⁴ They also claim that they fall within the safe harbor provisions of the DMCA.⁵

Usually, when confronted with similar lawsuits, Google has been able to rely on the safe harbor provisions of the DMCA.⁶ However, these provisions may not be able to save Google in this case. Considering that Google does profit from people using YouTube and is aware that people could abuse its server to infringe others’ works, Google may not be able to meet the knowledge requirements set forth under the safe harbor provisions of the DMCA.⁷

This is assuming that the safe harbor provisions are examined under a strict reading. The court, however, should examine these provisions more loosely. While it is true that Google does profit from YouTube, it is not necessarily from the number of infringed videos uploaded. Aside from the millions of people who visit YouTube,⁸ Google profits from YouTube from the advertisements present on its main home page as well as those present in the search results.⁹

In addition, while Google and YouTube may be aware of the possibility of its users infringing, there is very little they can do aside from what they do now. YouTube would need to check every video that is uploaded, and make sure that it is not infringing on anybody’s copyright. This is difficult in multiple levels. First, YouTube would need to identify whether the work is protected by copyright. Since neither notice¹⁰ nor registration¹¹ is required for copyright protection, attempting to discover whether a video a particular video is infringing can be a difficult and tedious task. Also, if YouTube does encounter a video that contains parts of a copyrightable work, the video may still fall under the fair use doctrine.¹² YouTube would then need to decide whether the work qualifies as fair use. However, this would require YouTube employees to be judges of what constitutes fair use, or to hire intellectual property experts to do it for them. In either case there is still the possibility of YouTube getting it wrong. Since this is something that should not expected from Google, YouTube, or any service provider in general, they should not be seen to violate the knowledge requirement.

Google and YouTube also remove unauthorized videos quickly after they are notified by the copyright holders. YouTube only asks that the copyright owner send in the proper notification requirements listed in the DMCA.¹³

The goal of Section 512 is to limit the liability that service providers would otherwise incur under regular conditions, because of the internet’s nature.¹⁴ Much of what is uploaded on YouTube is out of their control. It would be asking too much of Google and YouTube to take the certain measures listed above. Even the measures they have recently taken to reduce piracy and infringement raise questions of whether they violate the fair use doctrine.¹⁵ Finding Google and YouTube liable would be a great harm to the public. Google and YouTube could potentially resort to charging for uploading videos in order to compensate for the liability costs. Or, it could lead Google to shut down YouTube. In either case, many people would lose a method of sharing their ideas and creativity to the public. This does not promote “Progress” as the Intellectual Property Clause of the Constitution states.¹⁶ If anything, it might be promoting regress.

In the ongoing debate about the scope of U.S. copyright law, there is possibly no company more in the spotlight than YouTube. YouTube launched in 2005 as a website where users could “easily upload and share video clips . . . across the Internet.”² In November, 2006, YouTube was purchased by Google in a $1.65 billion stock-for-stock deal.³ Now, more than 72 million monthly visitors view more than 100 million videos per day.⁴

The combination of YouTube’s business model (relying entirely on uploaded content) and Google’s deep pockets have made the company a lightning rod for litigation. The frenzy of lawsuits has left many confused about who has sued YouTube for what, and about what lawsuits remain relevant. This post is intended to provide a basic overview of the litigation timeline since early 2006, including a basic description of each of the six complaints filed against YouTube. Major developments have been included in the graphical timeline below (click to expand).

Tur v. YouTube⁵
filed: July 14, 2006
dismissed: October 19, 2007

Robert Tur is an independent news videographer, perhaps best known for his footage of the beating of Reginald Denny during the L.A. Riots in 1992 and his footage of the infamous O.J. Simpson white Bronco car chase in 1994. Capturing such socially important moments earned Tur his reputation, but also caused him to struggle against unauthorized uses of his work.

In the summer of 2006, Tur was the first to file suit against YouTube on a theory of copyright infringement. Both parties’ summary judgments were ultimately denied, but the case was never litigated to completion. Tur voluntarily dismissed the case in the fall of 2007 in order to join the Premier League class action suit against YouTube (discussed below).

Viacom v. YouTube⁶
filed: March 13, 2007

Viacom is the corporation that owns MTV, VH1, BET, Comedy Central, and other popular media outlets. Although other similarly-situated content owners had already signed licensing deals with YouTube,⁷ Viacom lost its patience after it served more than 100,000 demands to remove unauthorized material from YouTube.⁸ Although YouTube complied with the takedown requests, Viacom alleged that users were immediately able to reupload similar or identical content. Shortly afterward, Viacom sued YouTube for allegedly hosting and displaying “more than 150,000 unauthorized clips . . . that had been viewed an astounding 1.5 billion times.”⁹ The complaint alleged direct infringement, contributory infringement, vicarious infringement, and inducement.¹⁰

Because of the scale of alleged infringement and the high profile of the plaintiff, the Viacom case is one of the two important cases pending against YouTube (the other being the Premier League class action, discussed below).

Premier League v. YouTube¹¹
filed: May 4, 2007

This class action suit for copyright infringement was filed by English Premier League, a major professional sports league from the U.K. While Americans may find it easy to ignore the complaints of a foreign soccer league, this class action has gained considerable inertia. Plaintiffs now include other European sports leagues, Cherry Lane Music Publishing, National Music Publishers’ Association, X-Ray Dog Music, Knockout Entertainment Ltd., Seminole Warriors Boxing, videographer Robert Tur, and author Daniel Quinn.

Along with the Viacom case, this is the one to watch.

Like all suits alleging copyright infringement by YouTube, this case is likely to turn on the court’s reading of Section 512(c) of the Digital Millennium Copyright Act. The MTTLR Blog will be publishing an in-depth discussion of the 512(c) safe harbor in relation to the Premier League case tomorrow.

Grisman v. YouTube¹²
filed: May 10, 2007
dismissed: May 25, 2007

David Grisman is a world-famous mandolin player (no, really). He played with The Grateful Dead, and has a following in the modern bluegrass scene. In fact, his popularity is such that several videos of him playing were uploaded without authorization to YouTube.

In an attempt to replicate the Premier League class action, Grisman and his company Dawg Music filed suit, alleging copyright infringement. The case was voluntarily dismissed two weeks later, due to Grisman’s desire to join the Premier League class to establish “a united front.”¹³

New Jersey Turnpike Authority v. YouTube¹⁴
filed: May 22, 2007
dismissed: May 24, 2007

Footage of a grisly car crash, recorded by cameras operated by the New Jersey Turnpike Authority, was obtained by a YouTube user and uploaded to the website. The NJTA sued YouTube for copyright infringement (without even having first requested YouTube to remove the content). Within days, the NJTA decided there was no use in trying to litigate against YouTube on its own and, like fellow small plaintiffs Tur and Grisman, threw in its lot as a member of the Premier League class.

Cal IV v. YouTube¹⁵
filed: June 7, 2007
dismissed: July 10, 2007

Cal IV Entertainment, LLC, a country music publisher, also sought to establish a class action suit against YouTube. Its concern was that “more than 60 of the copyright songs in its catalog appeared in various forms without the proper license or any authorization.”¹⁶ As with most of the independent plaintiffs, Cal IV eventually voluntarily dismissed its action in favor of the Premier League class action.