Objecting to the Increasing Burden on Copyright Owners and Creators
Thursday, June 24th, 2010 by Patrick Ross
Print This Post
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.
June 24th, 2010 at 4:32 pm
Unfortunately, this is the result when the burden of administering copyright law is placed entirely on Congress.
The difficulty and pace of getting legislation passed compared to the pace of technological changes ensures that when Congress does do something, it’s already responding to yesterday’s problems. And that same difficulty and pace ensures that those efforts, like the DMCA, remain ‘hard-wired’ into the law for decades.
And as you observed, the legislative process is influenced most by the most established and most powerful interests, like Verizon, leaving the interests of artists, creators, and smaller stakeholders off the table.
Look at Victoria Espinel’s recent report and see what is missing: a lack of any institution that can administer and enforce copyright law better than Congress can. The Copyright Office is ideally situated to take on this role. They are given a pat on the back for a couple of speeches and outreach programs they do in the report, but that only seems to highlight the fact that the agency continues to play little role in shaping and administering copyright policy.
June 25th, 2010 at 7:15 am
The fact is, the judge ruled pretty much according to the law. It’s the DMCA itself that needs amending at this point. One idea I’ve been mulling over (not enough to decide if it really is a good idea or not yet though) is this: In order for an ISP or web site to be eligible to fall under safe harbor laws, they must require personal, identifiable information as to who the uploader is. If it’s going to be the case that the sites are not liable, then they need to be required to display information as to who actually is the one infringing - which is the uploader. The anonymity of the net has allowed people to do whatever they want, with no repercussions for their actions.
In all truth, it really is the uploaders who are doing the infringing on YouTube, even though YouTube executives knew very well that this was vital to YouTube’s success.
YouTube’s largest fault is one of a complete lack of morals and respect for other peoples’ work. The law and ethics are absolutely not the same.
June 25th, 2010 at 7:54 am
I have to agree with William, while wishing that the ruling was different the outcome is not going to change under current law. Many articles on this subject are comparing this decision to Grokster, Napster and others that encouraged infringement. The key in all of these cases was the encouragement to infringe and the purpose being almost strictly for infringement. Does anyone have any numbers on what might be the amount of infringing material currently on YouTube? I understand that a good part of this is historic but their top viewed videos does not (at least at this moment) appear to have any infringing content, not to say it doesn’t exist.
Understanding that the protection of copyright is critical any future change in law will have to consider whether or not the idea of a user generated content site can exist at all.
June 25th, 2010 at 10:06 am
When I read this article I couldn’t help but think the YouTube story to be insignificant.
“Cyberlockers now represent the preferred method by which consumers are enjoying pirated content,” Paramount Pictures http://yhoo.it/9EwPsO
It leads me to think that a walled garden may need to be erected whereby entire countries may have to be blocked from countries that have better copyright enforcement.
The tremendous amount of money to be made by these criminals could be enough to influence law in the offending countries themselves.
Remember that 3 strike laws don’t even cover the type actions associated with this type of infringement.
If I ever saw a darker future for copyright I can’t think of it.
June 25th, 2010 at 10:17 am
I mention the streaming sites in the post. Those sites tend to either rely on content being hosted in cyberlockers or work through P2P file-sharing. These sites are also subject to DMCA notice-and-takedown, although many are outside of the US and aren’t exactly responsive.
As for graduated response, in countries where that is being put into law the focus is on the individual infringer. Just about any government already has the authority to shut down a criminal online venture within its own borders, and when I testified on this issue at a December event at the FTC, I even got a speaker from EFF to agree that no country should tolerate a commercial pirate site operating in its borders.
June 25th, 2010 at 10:27 am
I’d love to see a discussion on the idea of basically requiring that any known offender web site must be blocked by an ISP. I’m really not one for government regulation, but we also can’t allow people to just host in another country so they can do whatever they feel like and ignore the law.
It would be an interesting change. Basically if you don’t comply with the DMCA, your site will be blocked for access in the United States.
Obviously this really has nothing to do with YouTube - it’s just that the comments above got me thinking about this.
June 25th, 2010 at 11:15 am
Actually, I see a connection to the YouTube debate — occasionally the content on a cyberlocker site or streaming site is actually user-generated and owned by the individual sharing. That is of course the thinking behind the DMCA safe harbor. Like the YouTube founders said in their emails, though, the user-generated content is not the content driving viewers.
Beyond YouTube, which derives income from advertising, I have a major issue with sites like ZML.com, which also sport ads but limit bandwidth and content unless you sign up for a paid subscription, complete with fake Visa, MasterCard and McAfeee logos to dupe the consumer into thinking the service is legal and safe. Actively collecting money for infringed content should certainly warrant blocking of such sites in the US, especially when they’re not seeking DMCA protection.
June 25th, 2010 at 3:55 pm
This post cites PicScout’s image infringement statistics. We agree, increasing burdens on the part of content creators is not the answer. The answer lies in harnessing the power of technology to be applied across platforms and devices to allow users to do the right thing, for content creators to promote their content wherever it appears, and for online host sites to use proper content identification. It’s also important to have a process in place whereby if images are not used correctly, there is a means for pursuing protection and compensation.
PicScout built its ImageIRC (index, registry and connection) to work with industry organizations like Plus, stock photo agencies and photographers to ensure that Every Image Gets Its Credit. PicScout provides promotion (ImageExchange), content ID (ImageQualification) and protection (ImageTracker) products which leverage PicScout’s proprietary fingerprinting technology.
You can learn more about ImageIRC by visiting http://www.picscout.com/products-services/products-and-services.html .
June 30th, 2010 at 5:38 am
[...] letter, in short, echoes the remarks I made in this space last week, that the court failed to consider the impact on individual artists and creators by green-lighting [...]