THR Esquire

YouTube can't filter two sets of critics

It's hardly shocking that YouTube's legal foes are criticizing last week's announcement of a long-promised filter system for copyrighted videos. (The lead lawyer in the growing class-action lawsuit by content owners called it "wholly inadequate.") More surprising is the skepticism offered by the other side of the debate — the proponents of "fair use" who say YouTube's video identification system goes too far.

YouTube parent Google says the filtering tools, still in a testing phase, will require copyright owners like Hollywood studios to submit their content to YouTube, which will create an archive to "match" with videos uploaded to the site. Partners will then get to choose: allow the infringing video (or even monetize it through ads), or automatically block it.

It's the second option that irks advocates for "fair use," that murky combination of copyright and First Amendment law that allows certain uses of protected material for things like creating art or news reporting. "The problem is that YouTube's video identification technology can't discern whether a 'match' results from a verbatim infringing copy or whether it results from a short excerpt embedded in a longer piece that includes other content," wrote Fred von Lohmann of the Electronic Frontier Foundation on his blog. EFF, a "digital rights" advocacy group, has been a frequent YouTube defender, especially on fair use issues. In March, EFF sued Viacom on behalf of MoveOn.org and got it to abandon an effort to force YouTube to pull a parody of "The Colbert Report" called "Stop the Falsiness." EFF also successfully pressured Universal Music Group into backing down from a takedown notice for a video podcast criticizing UMG artist Akon that included some copyrighted music.

YouTube will permit users to challenge blocked videos, but von Lohmann thinks a better solution is to test for what ratio of copyrighted content an uploaded video contains and require both video and audio matches before blocking occurs. But even that may not be enough.

"We don't think that any automated process will be able to determine whether a consumer's fair use rights are being violated," Gigi B. Sohn, president of Public Knowledge, told Wired.

That puts Google in a tough spot. It has long argued that its current policy — simply removing improperly posted videos each time a copyright owner sends YouTube a takedown letter — satisfies its legal duty under the Digital Millennium Copyright Act. But no court has ruled on that position. And despite Viacom top lawyer Michael Fricklas' public comment that he was "delighted" by Google's announcement of the filter testing, the company continues to press its $1 billion infringement lawsuit. The separate class-action is also picking up steam.

YouTube has to offer some kind of automated content protection if it hopes to maintain studio partners. The same week as YouTube's filtering announcement, a coalition that includes Disney, NBC Universal, Microsoft and MySpace unveiled a set of "User Generated Content Principles" designed to move toward an industry standard for protecting rights on video-sharing sites. Notably not a signatory: Google, which some analysts believe timed its filter news to tout its own alternative before it is pressured to accept a content industry-backed model.

There's plenty about YouTube's filtering system for copyright holders not to like — for one, it places a hefty burden on them to turn over hundreds of thousands of videos to a company not famous for respecting IP. But fair use concerns could make tough negotiations even tougher.
comments powered by Disqus