How did we find ourselves in a world where a group of venture-funded entrepreneurs can knowingly build a business model off of the display of unauthorized copyrighted works, be on the record as knowing that their cash flow would stem almost solely from this infringement, and still get off the hook as long as they took works down after being notified by the copyright owner? What are the implications of this world not just for producers of television shows and motion pictures, but for creators of all stripes?

I ask these questions in the wake of a U.S. District Court judge issuing a summary judgment to YouTube and Google of Viacom’s suit against the online video site for massive infringement. Not being a lawyer, I’ll leave the analysis to those better suited to it. Instead, let’s look at some of the profound implications that could stem from this decision should Viacom not succeed in its appeal. There really is no limit to the breadth of impact this has on creators and copyright owners, whether you are producing a live sporting event or attempting to earn a living as a photographer.

It’s great to have a place for true user-generated content, and many media companies — including Viacom — recognized that in 2007 when they partnered with UGC sites in developing a set of principles to both respect the ability of individuals to upload audiovisual works and provide an environment where copyright owners could pursue consumer-friendly online business models not in direct competition with infringing postings of their own works.

As for potential victims of this odd turn by one judge, let’s take photographers. Just yesterday I was editing a video of a professional photographer, which will post soon on our Creators Across America site. He talked about the tremendous burden of trying to track down myriad copies of his works across the Internet. As we pointed out in our filing with the U.S. Intellectual Property Enforcement Coordinator, a recent PicScout study done for the Picture Archive Council for America found that of an estimated 5,000,000 or more rights-managed images found on commercial web sites, about 80% were not properly licensed. That’s a lot of lost revenue for photographers, and as we were reminded in the interview I’m editing, the standard business model for photographers is that they retain their copyright even after a client uses their work. Those infringing uses take money directly from photographers’ pockets.

Now PicScout and others are looking to provide online tools for visual artists. In some cases, that involves ways those searching for photos or illustrations online can more easily identify the copyright owner and arrange for affordable licensing. In other cases, it may be ways for visual artists to track down the infringing works to begin with.

But what is a photographer to do when all of those infringing uses are found? Send DMCA takedown notices, of course. I remember reading that Viacom had a roomful of employees who spent all day, every day, scanning YouTube for infringing works, such as shows from Comedy Central or MTV. Can a photographer operating a studio in Spokane do that?

Hardly.

For a safe harbor to be meaningful, there has to be some sense that the online host of material will recognize that rights actually matter. The UGC sites that signed on to the “Principles for User Generated Content Services” (which YouTube never joined) agreed to this:

UGC Services should use effective content identification technology (“Identification Technology”) with the goal of eliminating from their services all infringing user-uploaded audio and video content for which Copyright Owners have provided Reference Material.

There are tools right now that are available to help visual artists, such as the PLUS Coalition, backed by many individual photographers and photography associations. UGC sites can proactively engage with copyright owners to adopt tools like PLUS to, at the choice of the copyright owner, block infringing content or provide a licensing solution.

However, if the law allows a UGC site to empower massive infringement without risk of liability, what is its incentive to pursue those partnerships?

Occasionally you hear of a site seeking to go legit. Take Justin.TV, a site that provides streams of loads of video, including live events. Now I can’t speak to the steps the company currently is taking to respect the rights of copyright owners because I’m not privy to them. I can tell you that at a December 16th hearing by the House Judiciary Committee, Justin.TV CEO Michael Seibel found himself on the defensive for the massive infringement his site was permitting of live TV, including pay-per-view events.

To his credit, Mr. Seibel did something that YouTube’s founders struggled to do, namely admitting publicly he knew his site enabled infringement (YouTube’s founders did it through snarky internal emails): “We are mindful both of the ways in which Justin.tv’s live streaming video platform can be used for legitimate purposes and the ways consumers can misuse the technology.”

Of course, one witness noted that since Justin.TV users were, by following instructions on the site, largely streaming content from their televisions, the odds were astronomically high that the TV content being streamed was copyrighted. Mr. Seibel said again and again that he wanted to work with copyright owners to incorporate numerous technologies to combat infringement, including technologies that would block the infringement before it occurred.

For every UGC executive willing to show up in Washington, D.C., to testify and vow to change his company’s ways, there are many more who will look to the judge’s decision yesterday in the Viacom case and see an empowerment of their business model of infringement. This is a growing problem, as the Congressional International Anti-Piracy Caucus noted this year when, for the first time, they vowed not just to target problem nations on copyright enforcement but rogue web sites enabling infringement.

Back when I covered the drafting of the Digital Millennium Copyright Act as a reporter in the 1990s, the push for an ISP safe harbor for infringement was led by ISPs such as Verizon. The example that kept getting pitched to me was an online bulletin board that might be hosted by an ISP, with an ISP customer potentially posting something infringing on that bulletin board. It’s safe to say that in 1998, no one anticipated millions of people capturing copyrighted audiovisual works electronically and then being enabled to share without authorization those copyrighted works with millions of strangers after a few mere clicks of a button.

But that’s the world we live in. The authors of the DMCA aimed to strike a balance between enabling online activity and ensuring the rights of copyright owners and creators. Technology has thrown that balance out of whack, and let’s face it, technology is unpredictable. That is understood. What is not understandable is when a judge interprets a 12-year-old compromise to appear to be no compromise at all, but is instead a blank check to anyone who wishes to knowingly profit by infringing another.

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This entry was posted on Thursday, June 24th, 2010 at 2:19 pm by Patrick Ross and is filed under capitol hill, creators, drm, internet, piracy, web 2.0. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.