A host of media companies have launched a new push to force user generated content sites such as YouTube to tighten up their copyright controls.
In a nutshell, the guidelines call for sites hosting UGC to automatically block content that matches copyrighted material submitted by copyright owners to a back-end database.
These aren’t new proposals—the studios have been pressing for automated filtering on YouTube and the like for quote some time now. But the presentation of these proposals as a set of “principles” is new, and somewhat misleading.
Typically, we see voluntary guidelines issued by industry groups as a self-regulatory measure, to ensure best practices are followed in the absence of regulation. But here, it’s not self-regulation—the biggest names in the UGC business aren’t there.
Google/YouTube, Facebook, and Yahoo are all noticeably absent from the video sharing services, as are a number of other channels for UGC, like blogs and other forums that allow the posting of media. Those who are present are those who would seek to regulate the business of others.
End Of Year Deadline
Another hint at the motivations behind this piece is the presence of a deadline—not normally something associated with a set of best practices. According to the document, UGC companies have to install content filtering systems by the end of this year:
3. 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 …
To that end and to the extent they have not already done so, by the end of 2007, UGC Services should fully implement commercially reasonable Identification Technology that is highly effective, in relation to other technologies commercially available at the time of implementation, in achieving the goal of eliminating infringing content.
After this, there is a detailed explanation of exactly how the UGC company should be filtering content, and the practices it should use to interface with the content owners.
Now look towards the end of the document, where it provides one of the few obligations of the content companies—not to sue a UGC company that has met these conditions and continued to update and refine its filtering systems.
If a UGC adheres to all of these [13 preceding] Principles in good faith, the Copyright Owner should not assert a claim of copyright infringement against such UGC Service with respect to infringing user-uploaded content that might remain on the UGC Service despite such adherence to these Principles.
Taken all together, this looks more like a list of demands accompanied by an implied threat of suit if they are not met.
It’s also interesting to see the contrast between this agreement not to sue and the introduction of the piece, which explicitly says that the “principles” don’t mean they won’t sue you anyway:
While we may differ in our interpretation of relevant laws, we do not mean to resolve those differences in these Principles, which are not intended to be and should not be construed as a concession or waiver with respect to any legal or policy position or as creating any legally binding rights or obligations.
The document also continually refers to the “elimination of all infringing content,” despite an early admission that there can be no perfect system. Of course, as has been pointed out before, a perfect system would block all infringing content and allow all lawful content.
False Positives Over False Negatives
While it’s nice to see the content industries admit that this is impossible, it looks like they’re entirely willing to favor false positives over false negatives. If they are continually trying to eliminate all infringing content, imperfectly, then what allowances do they make for fair use?
None that I can find in the document. Aside from making mention of the doctrine’s existence and the need to “allow” it, no provisions or incentives to preserve users’ fair use rights make an appearance.
The only specific user-oriented provision merely recites the fact that users have the right to counter-notice if their material is improperly taken down—an obligation already built in to the DMCA.
In a way, this merely reflects the priorities of the parties issuing this document—five of the largest content companies in the world (and one of their subsidiaries), a couple of UGC startups, and Microsoft.
Smaller companies are more susceptible to pressure from litigation threats from media giants, and are likely willing to accede to demands like these to assure investors that capital won’t be lost to Hollywood litigation.
Veoh is likely under dual pressure, given both its connections with Time Warner and its history of litigation with Universal. Microsoft is something of the odd one out, but given the minuscule market share of Soapbox, what have they got to lose but risk?
No Mention Of The Users
Another big party to the user-generated content revolution is missing from this document—the user. As drawn up by Hollywood and a few cowed tech sites, the principles are all about what is convenient or desirable for those particular parties.
The lack of attention paid to fair use, or any procedures relating to users (there’s a similarly brief mention of counter-notification that’s already required under the DMCA), it’s clear that this document was created more to stake out a policy position than to provide a real way forward.
So why should we care about this document, if it’s merely the same old story, framed differently? For the same reason that Google’s recent caving is a cause for concern.
By framing these asks as principles, the content industry seeks to change the norms around the debate, and make filtering seem like an obligation. After all, if Google and Microsoft are doing it, why aren’t you?
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