The main issue with the myriad of user generated content sites(Youtube, Vimeo, etc) are that they offer a highly efficient network for the use and spread of copyright infringing content, obviously. The entire Viacom vs. Youtube lawsuit is based upon Viacom’s belief that Youtube, as a business, benefits from the availability and use of infringing content on the website. Viacom is pursuing Youtube on the basis that they are failing to adhere to the criteria for protecting under Act § 512, complaining that Youtube is neither “act[ing] expeditiously to remove, or disable access to, the material” nor “not receiving a financial benefit directly attributable to the infringing activity”. Viacom claims that Youtube has not put enough effort and technology into making sure that unlicensed copyrighted content is removed from the site. That is why, in the midst of a legal battle, the timing of Youtube’s revelation of the beta version of their new Video and Audio Identification software is so beautifully bratty.
Like a stubborn middle schooler, who only wants to do it their way, Youtube, after being sued, is taking a step toward efficiently handling infringing content. However, they want to make it know that they don’t have to do it. In a recent blog post, Youtube product manager, David King stated that the new Video and Audio Identification “goes above and beyond our legal responsibilities”. But like a stubborn middle schooler, Youtube’s creation may prove to further the reach of the copyright “take-down” abusers, they are currently fighting in court.
Youtube’s Video Identification uses copyright owner submitted material as a template for an automated system which matches the audio and/or video to user uploaded content. When matches are found, copyright owners have the option to block that content, track that content, or monetize the content. Youtube has essentially given greedy copyright owners an easy system to enact frivolous takedown’s on any videos that have any semblance to their copyrighted content. The idea of the software is justifiable and obviously the monetary motivation is at the heart of the system., Video Identification allows for copyright owners to, in effect, license their content to Youtube for monetary return. The system also allows Youtube to take a backseat to takedown claims, giving full onus to the system and the copyright owner. However this passive stance provides the opportunity for the unbridled abuse of the system. With what seems like little room for appeal from the user, the software deals a serious blow to any petitions of fair use. At the heart of the Lenz v. Universal case was how Universal was not acting in “good faith” and did not consider the application of fair use when it issued a takedown notice for her “use” of Prince’s “Lets go crazy”. This new software may take takedowns to an even further level. Imagine the potential of this software. What if a video is posted of a car ride conversation, which happens to involve the background car radio playing a famous song. This software potentially has the power to take match that background song, which has nothing to do with the video itself, and issue a takedown at the will of the copyright holder. Takedowns could begin to be issued even more frivolously than ever before, all while allowing the full burden of “good faith” and fair use consideration to rest on the shoulders of Youtube and its new software.
It will be interesting to see how Youtube chooses to implement this new technology. According to its website, this new software will make money, increase fan interaction, reduce infringement, and provide market data. With the rapid increase in ads, iTunes plugs, increase in competition, and a deal with Universal resulting in the creation of Vevo (Youtube’s music video channel), hopefully money making is still second to the users on Youtube’s priority list, but if not this may be the end of Youtube’s reputation as a place to “Broadcast Yourself”, hurting itself in the long run.
Yale Law Tech 