Tag Archives: copyright filter

The many angles of Fair Use in copyright

A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.

The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”

The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group.  Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.

Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way. 

Warner Music Group, no doubt, feels the same way about the performance.  However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web.  The use of the video by Google/YouTube is therefore not fair use.  

Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence.  The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content.  That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.  

From the NY Times article…

Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”

Copyright Filtering and Digital Fingerprints come to MySpace

The New York Times reports that Myspace, faced with possible legal action, has begun offering filtering technology that will the help prevent copyrighted videos from being uploaded and re-uploaded to the site. The new technology is called “Take Down Stay Down” and was developed by Audible Magic.

The Times reports that “copyright owners [will] have access to Take Down Stay Down free of charge. If the social-networking service receives a takedown notice regarding a copyrighted clip hosted through its MySpace Videos hosting service, MySpace’s new feature will take a “digital fingerprint” of the video and add it to a copyright filter that blocks the content from being uploaded again. “(It’s) the ability to have a piece of content imprinted and put in a database so we can identify it,” said Vance Ikezoye, CEO of Audible Magic.”

Similar to YouTube’s upcoming “Claim Your Content” filtering technology, Myspace has now done something concrete to contend with the unauthorized uploading of copyrighted video by its members.

YouTube close to preventing copyrighted content uploads

I’ve been watching with great interest how YouTube handles accusations that it knowingly hosts and broadcasts copyrighted material. It now seems that Google, which acquired YouTube in November of 2006, is close to releasing technology that will help eliminate video uploads which violate intellectual property laws. Claim Your Content is Google’s name for filtering technology that will give content providers and publishers an easy way to alert YouTube that copyrighted material has been uploaded to its site.

But is a major showdown brewing? This March, Viacom sued Google and YouTube for $1 billion citing massive and intentional copyright infringement. Will this case ever go to court? Google has begun making revenue sharing deals with its major content contributors. If Google and Viacom can agree on revenue sharing terms then Viacom’s copyright infringment suit probably never goes to trial.

I don’t think there’s any question that YouTube built its vast community, and its brand, while knowingly broadcasting copyrighted material. Now, under Google’s dominion, the site is rapidly making attempts to satisfy copyright regulations.

Going forward with revenue sharing seems like the smartest way out of the copyright problem. However, will major media companies like Viacom seek compensation for past broadcasting of their content – broadcasting which made YouTube one of the top destinations on the Internet and that led Google to purchase the company for 1 billion dollars?

By October of 2006, before Google acquired it, an estimated 90 percent of the more than 100 million videos watched daily on YouTube violated copyright laws, according to Josh Bernoff of Forrester Research.

I’m sure Google/YouTube will work out revenue sharing with its major content providers going forward. The questions to me are:

  1. Will they compensate (or be forced, through the courts, to compensate) for that initial decision to broadcast copyrighted material in the first place?
  2. How will they compensate for that initial decision to broadcast copyrighted material?
  3. Can you create a business that essentially gives everyone else’s products away, and then sell it to a megacorp for $1 billion, and not pay some legal penalty?

Follow Up: This article from the Washington Post, published on March 24, 2007 Our Case Against YouTube outlines Viacom’s case against YouTube. It was written by Michael Fricklas, general council for Viacom.