A Better Piracy Mousetrap

28 Mar, 2014 By: Erik Gruenwedel, Chris Tribbey

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When Google and Viacom announced they’d come to a legal resolution of their 7-year-old, $1 billion copyright infringement lawsuit, it was more than an end to the respective legal teams’ billable hours.

Google-owned YouTube, which was at the center of the suit, during the course of the litigation expedited development of Content ID, a software program capable of automatically flagging videos suspected of harboring pirated content. That was no small task considering YouTube regularly tops all online video platforms — including more than 159 million unique viewers watching 13.4 billion videos last December, according to comScore.

Specifically, Content ID scans YouTube’s voluminous video archives against a database of more than 25,000 copyright infringement references determined by qualified content holders. The social video platform claims that more than 5,000 content holders use the software.

Unique to the software is the ability of content holders to embed ads on pirated material and generate viewership statistics, or block viewing in select countries and regions.

“When Content ID identifies a match between your video and a file in this database, it applies the policy chosen by the content owner,” YouTube said on the software’s user page.

This type of self-regulated security was at the heart of U.S. District Court Judge Louis Stanton’s 2010 decision, which said safe harbor provisions of the Digital Millennium Copyright Act protected YouTube against user-generated pirated videos. Stanton granted Google’s motion to dismiss the case, pointing out that YouTube worked to remove infringing material “swiftly” once those video clips were discovered.

Indeed, when Viacom confronted YouTube with a mass take-down notice on Feb. 2, 2007 (the date of the lawsuit), of more than 100,000 video clips from properties such as Paramount Pictures, MTV, Nickelodeon and Comedy Central, it did so in 24 hours.

“The present case shows that the DMCA notification regime works efficiently: when … by the next business day YouTube had removed virtually all of them,” Stanton wrote in his ruling.

Viacom appealed the ruling, and the case dragged on.

Interestingly, the House Judiciary Committee March 13 held a hearing to explore whether revisions are needed for “Section 512 of Title 17,” also known as the “Safe Harbor” provision, or DMCA, which was enacted in 1998 — an eternity ago in the digital age.

Considered a non-partisan issue, judiciary chairman Rep. Bob Goodlatte (R-Va.), in opening remarks, said the DMCA enables copyright owners to quickly remove infringing online content, while also allowing good-faith online services to operate without risk of liability for the actions of their users.

Specifically, Goodlatte challenged why copyright owners must be burdened sending voluminous amounts of notices seeking removal of infringing content, followed by an almost immediate reappearance of the same infringing content. He said possible legality of the notices and their impact upon legal doctrines such as fair use and the First Amendment; and increased instances of “outright fraudulent notices” sent with little risk of penalties, represent issues to be addressed.

“Section 512 was the product of balancing a number of interests to resolve various issues to improve the copyright system for all,” Goodlatte said. “As the committee conducts its review of our copyright system, we should keep this consensus model in mind while examining challenges and potential solutions.”

Congressman Jerrold Nadler (D-N.Y.) March 19 told the Association of American Publishers he doubted revisions to the DMCA would occur this year.
Nadler, who is a ranking member on the Congressional Subcommittee on Courts, Intellectual Property and the Internet, addressed publishing concerns surrounding the rights of e-book holders to resell copies in perpetuity. Physical book (and packaged-media) owners have the right to resell items under the First Sale Doctrine. Nadler agreed the current notice and take-down provision isn’t efficient in a rapidly evolving digital world. But changes in Congress don’t happen overnight.

“I don’t think we’re going to do major legislation this year — maybe next year,” he said.

Meanwhile, YouTube in 2012 launched a separate stealth “super flagger” program aimed at identifying hate speech and pornography, among other “community guidelines” in uploaded video content. Potentially offensive material (including terrorist propaganda) is determined by about 200 groups (including government organizations) and individuals specifically contracted by YouTube, according to a Wall Street Journal story on the program.

Viacom properties now regularly stream content on YouTube in exchange for marketing, advertising and incremental revenue opportunities. Years ago, however, such cooperation was a pipe dream, as subscription streaming, electronic sellthrough and transactional VOD were in their infancies. Fear of YouTube becoming the Napster of pirated video content in part prompted Viacom to serve Google with litigation.

“This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together,” Viacom and Google said in a joint statement on the settlement.

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