Great new way to prevent liability or hurdle to fair use?

November 6, 2007 9:32 AM

Google has announced plans to implement a filter for copyrighted works on youTube. They have been receiving criticism from all sides.

Content owners would prefer an industry wide approach to the problem.

The EFF feels the filter would create a hurdle to fair use since it could block legitimate content. The EFF has compiled what they consider a test suite of content that is a legitimate fair use but that could be blocked by the content filter. Some of those videos are great!

posted by Arbac (51 comments total)

Damn .... that should be announced, not accounced! And that was my first fpp too :-( So much for not screwing it up. Hi everyone :)
posted by Arbac at 9:35 AM on November 6, 2007 [1 favorite]

Sp.
posted by kuujjuarapik at 9:36 AM on November 6, 2007

Don't take any critisim to hart.
posted by yhbc at 9:39 AM on November 6, 2007 [3 favorites]

"Critisim" made me think of a virtual Roger Ebert.
posted by brain_drain at 9:40 AM on November 6, 2007 [1 favorite]

lol, I didn't even notice the criticism misspelling. Laaame. This is what I get for posting quickly between classes. I promise the next one will be much better!
posted by Arbac at 9:41 AM on November 6, 2007

I guess that means no more "Put Down the Duckie" goodness on YouTube, then. *sniff*
posted by pax digita at 9:44 AM on November 6, 2007

Respellified.
posted by cortex at 9:46 AM on November 6, 2007

That's the end of youtube as a fun place then. Napsterfication awaits.

Yeah, I'm really digging this unsigned funk trio :|
posted by fire&wings at 9:50 AM on November 6, 2007

I think this is an awesome idea, but i also feel EFFs concerns about the accuracy of the filters. I can see why it would be in Google's best interests to err on the side of caution when it comes to either allowing or not allowing content on youtube, but I'll be damned if they're going to stop me from posting my videos of Darth Vader where every time he speaks I add a fart noise.

On the other hand, what I know about what qualifies as fair use wouldn't fill a thimble, so my understanding of how easy or difficult it is to filter is almost nonexistent.
posted by shmegegge at 9:51 AM on November 6, 2007

Does anything on the Internet get better over time or is all great at the beginning and then ruined by popularity/notoriety?
posted by tommasz at 9:51 AM on November 6, 2007 [1 favorite]

You know, what pisses me off is that P2P file-sharing obscures the deeper problem that IP holders are trying to destroy people's ability to exercise their indisputable, not-in-gray-area Fair Use rights—such as with parodies and the like. This tech will allow them to automatically issue takedown notices to people with any content that matches something in the database, even when it's a five-second clip that clearly meets Fair Use guidelines. This is bullshit.
posted by Ethereal Bligh at 9:52 AM on November 6, 2007

Arbac, I hope you're planning on making media law your specialty. Future litigators of America need to defend precious Internet, last bastion of free expression and democracy, spelling be damned!
posted by Curry at 9:54 AM on November 6, 2007

Does anything on the Internet get better over time?

Internet porn has improved drastically.

...or so I've been told...
posted by Steven C. Den Beste at 9:56 AM on November 6, 2007 [2 favorites]

"Don't be evil" will be on the list of "Corporate slogans that sounded cool in the beginning until the almighty dollar spoke up."
posted by drstein at 9:59 AM on November 6, 2007

“...or so I've been told...”

Oh, I can testify first-hand that the quality of Internet porn has grown much larger over the years.
posted by Ethereal Bligh at 10:00 AM on November 6, 2007

Ethereal Bligh: "This tech will allow them to automatically issue takedown notices to people with any content that matches something in the database, even when it's a five-second clip that clearly meets Fair Use guidelines. This is bullshit."

woah, this is what I read:

Copyright owners get the right to add advertising to the video or request the content be taken down under the "Video Identification" program, which requires copyright holders to help Google create the database.

Content uploaders will be automatically notified that a copyright holder alleges the work is infringing. The uploaders still have the opportunity to keep the content on the site, which the Digital Millennium Copyright Act requires.

You can see why what you've described and what the article described are totally different, right? I mean, what I'm concerned about is that none of the links here describe the filtering criteria google's using, but everyone seems to be assuming it isn't good enough for anything.
posted by shmegegge at 10:04 AM on November 6, 2007

Was there a coded reference to self-abuse hiding in there somewhere?
posted by Lentrohamsanin at 10:04 AM on November 6, 2007

Fair Use, Fair Use, Blah Blah Blah.

Look, I'm all about reforming intellectual property law, but are we REALLY talking about an uploaded clip of Bonanza so that you can write a critique about the Hollywood version of the Old West -- or are we talking about uploading full episodes of TV Shows?

Because I don't ever see an [expletive] TV critique on YouTube. I see the gosh darned episodes themselves.

[nondevilsadvocate]
posted by cavalier at 10:09 AM on November 6, 2007 [1 favorite]

to explain what I was saying a little more:

google's current policy is to just take down anything that's been contested. this just issues a note to the uploader, near as I can figure, saying that the data is claimed as infringing. then the uploader has the opportunity to contest the claim. now the technical details of the filtering are indeed an issue, but since we don't know those details we're just kind of making assumptions, no? the EFF makes some very good points, but I've yet to hear what google's filters are and whether or not they already do what the eff has demanded.
posted by shmegegge at 10:09 AM on November 6, 2007

shmegegge, no I don't see how the two are completely different. IP owners will be notified of a match, they'll routinely ask that the material be taken down because it infringes without even looking at it. Users will respond that it doesn't infringe and keep the content posted, and then the IP owners will respond that it does, in fact, infringe, again without actually checking. At that point, Google will probably side with the IP owners because they're the ones with expensive lawyers.
posted by Ethereal Bligh at 10:09 AM on November 6, 2007

“Because I don't ever see an [expletive] TV critique on YouTube. I see the gosh darned episodes themselves.”

I just watched a compilation of clips of movies where it counted down from one-hundred to one of people saying those numbers. People commonly use bits of newsclips and TV shows for their own homebaked “comedy” shows.
posted by Ethereal Bligh at 10:11 AM on November 6, 2007

"alleging it's YouTube site is riddled with copyrighted works"

In a further development, Wired magazine misuses the apostrophe.
posted by nax at 10:12 AM on November 6, 2007

well, owners will have to contribute the data in question to the database, which will (although this is an assumption, I can't imagine they'd be insane enough to do it otherwise) have to be in some way vetted by google to gain entry to the database. if it does not vet, then google tells them to fuck off. if it does vet, then presumably we're at the exact same point we're currently at.

the circumstance you're describing is actually still better than right now. Right now I could go and tell youtube to take down your own wedding video, claiming that i had copyright on it, and the most you'd get is a notice explaining that your video was taken down and you better not infringe on my copyrights again.
posted by shmegegge at 10:13 AM on November 6, 2007

Does anything on the Internet get better over time or is all great at the beginning and then ruined by popularity/notoriety?

Not that I'm comparing the severity of the two, obviously, but you do understand why the majority of gangster movies don't have happy endings, right?
posted by XQUZYPHYR at 10:19 AM on November 6, 2007

Better watch Code Monkeys while you still can!
posted by autodidact at 10:25 AM on November 6, 2007

The EFF feels the filter would create a hurdle to fair use since it could block legitimate content.

The fact that a video clip is legal does not create an obligation for Google to host it.
posted by DevilsAdvocate at 10:41 AM on November 6, 2007 [1 favorite]

But... but... the tube is for me!
posted by Citizen Premier at 11:23 AM on November 6, 2007 [1 favorite]

What is your point DA? As a video hosting business, Google is motivated to host all the "legal" content it can get.
posted by b1ff at 11:26 AM on November 6, 2007

EB, I'm not getting why you think implementing this filter has anything to do with how the DMCA mandates google must handle an actual complaint letter. There's no such "they'll just go with the bigger lawyers" requirement.
posted by nomisxid at 11:34 AM on November 6, 2007

IP owners will be notified of a match, they'll routinely ask that the material be taken down because it infringes without even looking at it. Users will respond that it doesn't infringe and keep the content posted, and then the IP owners will respond that it does, in fact, infringe, again without actually checking. At that point, Google will probably side with the IP owners because they're the ones with expensive lawyers.

How is this different from the current DMCA standard? Google is considered a "common carrier" (well, at least for the data transmitted on it's network, not it's actual network infrastructure). DMCA requires that Google take down anything that has been identified as potentially infringing (RIAA vs Verizon). Google has no dog in the fight whatsoever, and will take down the content simply because that's what the DMCA stipulates, and they don't want to be held liable.

Now, if the author sends Google a "Put Back" notice, Google must re-instate the content within 14 days, unless the copyright holder sues the author. That's the DMCA process in a nutshell. Google doesn't side with anyone on anything, it's simply following the law...

So what has changed? Nothing, except they're trying to make the system more automated - saves them time and money since they are required to comply as above anyway.

Reading the EFF article, it seems like a lot of FUD. Lots of "it appears as if" talk, but nothing concrete. I'll wait till the system ramps up before I begin to criticize it...
posted by SweetJesus at 11:39 AM on November 6, 2007

What is your point DA?

My point is that I find "this policy might lead Google to disallow some videos which are legal" unpersuasive, because Google already had free rein to allow or disallow whatever legal videos it saw fit, well before this policy existed.

As a video hosting business, Google is motivated to host all the "legal" content it can get.

I would think Google would be "motivated" to temper a potentially unbridled profit motive with proper management of the risk involved with hosting videos of uncertain legality.
posted by DevilsAdvocate at 11:42 AM on November 6, 2007 [1 favorite]

So what has changed? Nothing, except they're trying to make the system more automated

What's changed is that it's making google do all the legwork. As it stands now, for something to be taken down, the content owner must search youtube, find the content, and request its removal. With the new content filter the content owners are essentially getting google to do their work for them. I don't think this is a good thing. As long as google follows dmca notice and take down procedure, they're doing everything they need to be doing. Why does google have to go a step futher and find the infringing material themselves?
posted by Arbac at 11:45 AM on November 6, 2007

Good post, spelling aside. Welcome!
posted by lazaruslong at 11:50 AM on November 6, 2007

As a video hosting business, Google is motivated to host all the "legal" content it can get.

No, not correct. Their goal is not "hosting content". Their goal is "making money". Getting sued is bad for business, and so their goal is to host enough content so that they get a lot of traffic for their advertising. If they accomplish that, they win.

Hosting more video and getting more traffic is an even bigger win, unless it is a statistical crapshoot. If an identified category of videos causes one or two major lawsuits per 10,000 videos, it's a loss.

And as DA says, Google has no obligation, legal or moral, to host anything whatever. They host whatever they want to; it's entirely up to them.
posted by Steven C. Den Beste at 11:51 AM on November 6, 2007 [1 favorite]

As it stands now, for something to be taken down, the content owner must search youtube, find the content, and request its removal. With the new content filter the content owners are essentially getting google to do their work for them.

Well, they're not doing any legwork for anyone. Copyright holders are contributing to the database, so it's not Google that's populating it. They filter against it, and I guess you could call that "work", but it's not work to me if a machine's filtering it from a list of copyrighted materials provided by an outside party - the outside party had to do all the legwork...

Why does google have to go a step further and find the infringing material themselves?

Well, when engineers see a technical solution to a social problem, the tendency is to take it all the way... But I dispute that google is "finding" anything. They've got a database of content from outside sources that they are filtering against at the request of these outsides sources.

Also, they're getting sued for billions by the media companies (specifically Viacom and Universal). It's not a bad way to play nice. Google's got other considerations besides the legality of your Chuck Norris parodies, or whatever... And you know, if the filtering really sucks, go move to Veoh. Go move to one of those networks that has all the bootleg anime and who's name escapes me. There are other options you know - Google really doesn't owe anyone shit.
posted by SweetJesus at 11:57 AM on November 6, 2007

From the copyright holders perspective the only thing they understand is the almighty dollar which is why the DMCA is so abused. From their perspective it's cheaper just to send out a cease and desist over anything questionable whether there is a legitimate reason for it's existence or not. Making judgment calls means they'd have to hire people to make that call which costs money. They already have lawyers but all they know how to do is file paperwork for a take down request. From their perspective erring on the side of caution for the consumer (in other words respecting Fair Use) is expensive because sometimes copyright will actually be violated. In their particular delusional world every copy of something out there that hasn't been paid for is dollars out of their pocket. They assume if you couldn't get it for free you would have bought it.

The short version of the above paragraph is "There is an economic incentive for copyright holders to abuse the DMCA".

Fair Use has no teeth behind it because the vast majority of consumers can't afford to sue the copyright holders. In other words there is an economic incentive for end users to not defend their Fair Use rights.

Taking the above in consideration along with shareholder responsibilities a company like Google has only two choices for a video service: Make a copyright enforcement system that will hurt the consumer or get out of the video distribution service. In either case the consumer gets shafted, in one case things are removed from the public eye that shouldn't be, in the other case things just never make it to the public eye at all.
posted by substrate at 11:58 AM on November 6, 2007

what I find interesting is the idea that Google is doing this at all, when there is no sign of it having sated viacom or universal. If I had been Google (and perhaps this is a sign of how little I understand the difficulties of their legal position) I would have brandished a team of the most ferocious and expensive lawyers in the world at them, and said "Now, in one hand I have a carrot, this filtering system that will help you out. In the other I have a stick, this legal team that would absolutely love to take this court case all the way to the Supreme Court just for the fun of having lunch with the justices again. Even if you win this case, we will insure that you spend exponentially more enforcing it, and maybe we'll even set a precedent by winning at the federal level, and then we'll sue you for making us go through all this in the first place. we have the money to do it. If you want the carrot, back the fuck off. If you want the stick, you get no fucking carrot." In the world of corporate law and business, I do not understand this notion of volunteering to back down this way. It's like saying "well, if I bare my throat to the wolf, it'll no doubt think that I'm nice enough to make things easier on it and then not want to eat me after all."
posted by shmegegge at 12:09 PM on November 6, 2007

Shmegegge, the only problem with your idea is that Viacom et. al. have Google dead to rights. There isn't any chance whatever that the courts would find in favor of Google -- not even the Ninth Circuit.

And Viacom et. al. know it, which means they won't be intimidated by that kind of saber rattling. Moreover, they too have billions for legal expenses, and they see themselves as fighting for their existence in this.

Understand that I have little sympathy for the big media companies. But the fact remains that posting entire works on YouTube is a violation of copyright.
posted by Steven C. Den Beste at 12:14 PM on November 6, 2007

(In fact, when Google acquired YouTube I had serious doubts about the sanity of Google's top management, because they also picked up YouTube's legal liabilities just as it was about to really hit the fan.)
posted by Steven C. Den Beste at 12:17 PM on November 6, 2007

Even if you win this case, we will insure that you spend exponentially more enforcing it, and maybe we'll even set a precedent by winning at the federal level, and then we'll sue you for making us go through all this in the first place.

Ahhhh, but that would never happen, because Google would almost certainly lose because they would be in violation of the DCMA, and therefore be held liable for the infringing content. Viacom and Universal would win, and there would be a precedent in law decidedly against consumer rights. How would that possibly be better?

In the world of corporate law and business, I do not understand this notion of volunteering to back down this way.

It's called negotiation (or capitulation if you're bitter), and it happens all the time.
posted by SweetJesus at 12:21 PM on November 6, 2007

In the world of corporate law and business, I do not understand this notion of volunteering to back down this way.

You're thinking of it as some sort of battle for a principle. Corporations don't look at it that way, unless the principle is one that's vital for their business plan.

This particular principle is vital for the media companies, but it isn't for Google, so it doesn't make business sense for Google to bet the farm to defend this principle. Especially since they have no chance of prevailing.

Successful corporations don't engage in quixotic gestures.
posted by Steven C. Den Beste at 12:41 PM on November 6, 2007

no no, what I don't understand is why they'd volunteer something like this when viacom and universal are clearly out to rip them to pieces. It seems futile and a waste of time. Like I said, it's like they're trying to appease viacom, and even though this doesn't appease viacom, they're just gonna put it out there anyway in the hopes that viacom changes their mind.

also, they've got google dead to rights? I'm not a lawyer, so I'm not going to pretend that I can argue the legal intricacies of this, but it was my understanding that the dmca's influence on youtube legally began and ended with the fact that google has to comply with the takedowns, which is precisely what they have been doing. It was also my understanding that the DMCA is too new, so the case is actually rather a landmark no matter who wins, so no one has anyone dead to rights since this will be the precedent upon which future cases are argued. Essentially it was my understanding that viacom's threat to google here is real not because of the virtue of their position, but merely their ability to spend enough money here to win whether they're on the side of justice or not. an ability google also has.
posted by shmegegge at 12:57 PM on November 6, 2007

Shmegegge, I believe that your "understanding" is incorrect.

This isn't just about the DMCA. This is about copyright law as it has existed for much more than a century. Even if the DMCA hadn't been passed, what YouTube does would be a violation of existing copyright law, and there is a huge body of precedent to that effect.

Nor is it the case that Google's liability begins and ends with compliance with takedown notices. They do have to comply, but that doesn't end their liability. If they made money from the copyright violation before receiving and complying with the takedown notice, then there is legal liability. Even if they did not, if the copyright holder can demonstrate loss of income from the copy right violation, there is also liability.

None of that has to do with the DMCA.
posted by Steven C. Den Beste at 2:09 PM on November 6, 2007

And as to precedents relating to the internet, mostly that was already established when the RIAA sued Napster out of existence. What YouTube is doing is not significantly different than what Napster did.
posted by Steven C. Den Beste at 2:13 PM on November 6, 2007

Big second to DevilsAdvocate above.

I'm going to sound like Jeff Zucker for a minute, but it seems like everytime someone tries to lay claim to intellectual property or copyright, the EFF gets all riled up about it, but all they ever are able to claim is, "this might infringe upon legitimate/CC/what-have-you content."

Yes, Fair Use is vital. Does Google's effort to keep a bunch of pirated video off of YT represent an assault on it? I find that highly doubtful. I'm a Creative Commons devotee, but part of that is a belief that people - even media megacorps - has a right to their IP.
posted by coolhappysteve at 2:13 PM on November 6, 2007

"people has a right," indeed. Also: I realize this particular article isn't about the EFF, but in general terms...
posted by coolhappysteve at 2:15 PM on November 6, 2007

"It will help copyright holders identify their works on YouTube, and choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to license their content to appear on the site—monetize their videos,"

Monetize..? oh dear.

I don't see why google can't just create a nice long form for them to fill out for each video that infringes, so they won't over-extend themselves and try to take down parodies, which is what is actually in question.

face it, you shouldn't be able to stream your favourite tv episodes for free. i'm willing to let that go, but if we loose parodies and mashups of the same, in the same swing? no way, google.
posted by Dillonlikescookies at 3:15 PM on November 6, 2007

I don't see why google can't just create a nice long form for them to fill out for each video that infringes, so they won't over-extend themselves and try to take down parodies, which is what is actually in question.

It already exists, and it's called a DMCA takedown notice...
posted by SweetJesus at 3:50 PM on November 6, 2007

coolhappysteve:
I'm going to sound like Jeff Zucker for a minute, but it seems like everytime someone tries to lay claim to intellectual property or copyright, the EFF gets all riled up about it, but all they ever are able to claim is, "this might infringe upon legitimate/CC/what-have-you content."

We're at a point in time where IP laws are, to put it lightly, in a state of flux (an acquaintance of mine is currently studying IP law, and nearly every few weeks some obscure new legal development invalidates what he was tested on the week before). All these unseemly public displays of teeth-baring and call-to-arms that we're getting from the RIAA, EFF, Youtube, etc, are because as long as those laws are in flux, public opinions and behavior regarding IP might actually matter. Hence, no involved party is going to stay silent nor admit any weakness until the dust firmly settles.
posted by PsychoKick at 4:05 PM on November 6, 2007

CDB I could not find where someone said that Google was obliged to host content, yet DA and you have both refuted this unmade statement. What was your motivation for bringing it up? In other words, what was your point?

Just because Google is not obligated to host content, doesn't mean that they are not highly motivated to host it. As you so generously pointed out, Google is in the "money making" business. They do not currently rob banks, and have instead chosen to use large arrays of disk drives to make money. Among other arenas, they have entered the video hosting space. As they are not the only operator in this space, they will have to compete. Therefore, I am of the opinion that they are motivated in the long run to get as many so-called "legal" videos hosted as possible.

Given that, I think it is fine for people to debate the mechanics of this system without being subject to sly jabs implying that they are nothing more than freeloaders with a sense of entitlement.
posted by b1ff at 6:57 PM on November 6, 2007

CDB I could not find where someone said that Google was obliged to host content, yet DA and you have both refuted this unmade statement.

No one has said such a thing outright, as the falsehood of such a statement becomes obvious when explicitly stated. I fear some people are thinking that without fully realizing the implications of such an assumption. If my fear is justified, I hope I have corrected the misperception. If I am wrong, and no one is assuming such a thing, my statement is at worst a minor derail.

Just because Google is not obligated to host content, doesn't mean that they are not highly motivated to host it. As you so generously pointed out, Google is in the "money making" business.

Google does not charge people to upload videos. Google does not charge people to view videos. Thus, it is not the case that more videos automatically equals more revenue, let alone more profit.

More to the point, though...

Therefore, I am of the opinion that they are motivated in the long run to get as many so-called "legal" videos hosted as possible.

It is not the case that there every video is either Platonically legal or Platonically illegal, and all a judge has to do in a dispute is to dig until he uncovers that Platonic truth. There are many videos which clearly do not violate copyright; there are many videos which clearly do violate copyright. But there are also videos which are unclear, where different judges would rule differently on whether they constitute "fair use" or not. "Fair use" is a very fuzzy thing, and what one judge would allow as fair use, another would not. Google has little to gain and much to lose by allowing videos of unclear status such as those. Whether allowing judges such wide latitude in determining "fair use" is a good thing or not is debateable, but if it's not a good thing, that's a problem to be addressed by legislators, not by Google.
posted by DevilsAdvocate at 4:51 AM on November 7, 2007