Copyright problems intensify for YouTube

February 7, 2007

News:  In the past week and a half, YouTube has come under increasing scrutiny for its perceived inability to prevent or remove efficiently copyrighted clips on YouTube that have been posted without authorization of the copyright holders.  First, YouTube failed to deliver on its filtering technology at the start of 2007, as some critics say YouTube had promised.  Last week, Viacom broke off negotiations with YouTube and demanded 100,000 unauthorized clips of Viacom owned shows to be removed from YouTube.  YouTube took action to remove them, but reportedly removed even some legitimate videos of third parties in the process (see here).  If that weren’t enough, the new NBC Universal CEO Jeff Zucker just blasted YouTube for these copyright problems (see here) — although Zucker didn’t mention that NBC has benefited from YouTube by posting NBC clips on the site, like the “uncensored” SNL video of Justin Timberlake “-ick in a box” skit that received over 13 million views on YouTube. 

Even some legal experts who one might expect to be sympathetic to YouTube have come out criticizing YouTube this week.  Harvard’s Berkman Center Director John Palfrey criticized YouTube’s current approach of self-policing of the site, at least from a copyright standpoint:  “I think as a general matter, if the strategy is to keep copyrighted material off the Internet, it’s a losing strategy.”  (Palfrey also posted a message of a third party who allegedly had one of his own clips mistakenly removed by YouTube when it tried to comply with Viacom’s  DMCA notice.)

Analysis:  At least some of the concerns of copyright holders are legitimate, but, to me, the question I have for the copyright holders:  What’s your solution?  That’s the $64,000 question that no copyright holder has yet answered.  Maybe they believe that YouTube should have the answer.  It’s true YouTube did tout the rollout of some filtering technology, and as of yet YouTube hasn’t delivered.  We’ll have to wait and see on that one.  Frankly, I’d rather have YouTube delay the launch of the filtering technology until the technology is really good.  If they are still developing it, it’s in the interests of copyright holders to give YouTube more time to perfect it.

Besides filtering, YouTube could have its own employees screen all content, either before or soon after the content is posted.  I’ll put aside for the moment questions of cost and labor, as well as how such conduct might affect its status under the DMCA safe harbors.  The more vexing problem is creating a form of YouTube censorship.  There’s a good chance that any human review of video clips would be overbroad, meaning employees who fear copyright lawsuits end up banning all videos that they have any question about.  When in doubt, throw it out.  Add into the equation, problem of human error (taking out videos by mistake, as noted in the article above), and you still have a far from perfect system.  Would such a human screening system be better than the current system?  It’s not clear to me that it would.  If YouTube were to be the official censor of all content posted on its site, my guess is that the “uncensored” SNL video of Justin Timberlake’s “-ick in a box” would not have been allowed.  In other words, NBC could not have posted what it did post on YouTube if we were to switch to a more aggressive, human policing system by YouTube.  This is not to say that the current system is without its flaws, but we have to put things into perspective and consider what’s the alternative.  Some might say shut down YouTube, but (besides being a nonstarter) that simply punts the question for the next YouTube.  Video sharing is here to stay.

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