The article extensively illustrates the development of Web 2.0 and the emergence of Youtube as one of the most popular websites on the internet. The author then summarizes Youtube’s liability protection under the Fair Harbor law. My interest in this article, however, stems from its discussion of the filtering software used by Youtube. “Youtube recently unveiled a video identification service which would create digital fingerprints of material that content providers wish to have protected.” If a video is uploaded to Youtube that matches the fingerprint of a copyrighted work, the owner can request that it be removed. Extensive tests have already been conducted: in one case, the system caught 18 instances of infringement after a service uploaded over 4400 hours of content to Youtube. After a copyright owner identifies infringing work, it can either have the material pulled or, even more incredibly, have its own advertisements added to the video. This technology is very appealing to Youtube because adopting it will show courts that it is doing all it can to remove copyrighted material. However, several factors make this protection unappealing. First, the “fingerprints” rely on a library of original content with which to match against infringing content. Thus, copyright owners will have to provide an extensive library of material to Youtube before being able to find their illegally uploaded material on Youtube. It is similarly unclear whether this technology will be able to identify slightly altered versions of original clips uploaded to the website. Fair Use advocates are equally concerned that the software will remove their own Fair Use works, mistaking them for infringing material.
This is an important article because it discusses Youtube as a company increasingly working for the Copyright holding companies rather than for its own users. Youtube is constantly in danger of copyright litigation: even the DMCA will not protect the company if plaintiffs can prove that Youtube is directly benefitting financially from copyrighted content. By signing deals with content owners that allow the owners to add advertisements to any of their content that was illegally uploaded, Youtube has cleverly created a way to profit from illegal content. Youtube also signed agreements with content owners to provide studio shows and clips on its services. This mitigates the temptation for users to upload illegal videos, especially if they can watch the legal version on the exact same website. However, by blindly implementing filtering software that automatically flags seemingly copyrighted material, Youtube may be dooming Fair Use works. Rather, Youtube should alter the filtering software so that it only flags videos that are either entirely made up of one video clip or contain a part of a copyrighted video with the corresponding audio from that clip playing as well. Many Fair Use artists will take the video but not the audio portion of a clip and mix it with other clips. Youtube can thus appease the studios and courts while still emphasizing the importance of its community of users, whom it built the website for in the first place.
In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.
This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others. Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.
On March 13, 2007, Viacom International Inc. filed a class action lawsuit against Youtube claiming massive copyright infringement by the defendant. Viacom filed the suit after sending takedown notices to Youtube demanding over 150,000 copyrighted videos be removed from its servers. In its complaint, Viacom notes “millions have seized the opportunities digital technology provides to express themselves creatively.” However, Viacom argues that Youtube has “harnessed technology to willfully infringe copyrights on a huge scale.” Youtube, the complaint urges, has built a library of infringing video clips in order to increase profit. Rather than attempting to remove all infringing videos, Youtube “has decided to shift the burden entirely onto copyright owners to monitor the Youtube site…to detect infringing videos and send takedown notices to Youtube.” Viacom claims that Youtube increases its own value at the expense of copyright holders through the following methods: displaying advertisements above infringing videos, allowing users to embed infringing files onto other websites to draw users to Youtube and subsequently increase ad revenue, and permitting users to keep copyrighted videos hidden from the public. Viacom also notes that Youtube hosts the videos on its own servers, rather than simply acting as a conduit through which users pass files. This, in Viacom’s interpretation, makes Youtube the primary copyright infringer as it is the entity that is actually “performing” the copyrighted footage.
Youtube is one of the more influential websites in the development of Web 2.0. The website has essentially ushered in a new age of internet democratization by giving all users the ability to create and host content. Viacom’s complaint fails to take several important copyright issues into account, however, decreasing the lawsuit’s validity in several key issues. First and foremost, it assumes that Youtube has a clear intention of hosting copyright infringing content. While the court decided that Grokster, in MGM Studios v. Grokster, did not have sufficient non-infringing uses to escape liability, Youtube was developed as a website where average internet users can upload home videos. When asked about a memory associated with Youtube, users will typically discuss a humorous home movie they saw rather than an illegal movie clip. Similarly, Viacom assumes that Youtube is responsible for policing its site for all copyrighted material, failing to mention the DMCA once in the lawsuit. The Safe Harbor clause of the Digital Millennium Copyright Act, however, removes service providers from liability for any copyrighted material that users upload to their servers, specifically if the content provider removes material that a copyright holder insists is infringing. Youtube immediately removes material upon receipt of a takedown notice, typically without even ensuring that the entity which issued the notice is actually the copyright holder. Youtube is similarly protected by the Inducing Infringement of Copyrights Act, which protects sites which do not induce others to commit copyright infringement. Rather, Youtube encourages users to produce their own works.