YouTube’s defense against claims of copyright infringement has long been the safe harbor of the Digital Millennium Copyright Act, which clears service providers from liability related to material transmitted through their systems (see text).
But if Google were to implement copyright filters, proactively screening content before it’s posted to the site, would YouTube leave the safe harbor of DMCA? That’s what some competitors in the video-sharing space have told me scares them about hiring Audible Magic or someone else to police their sites.
I recently put this question to attorney Richard Idell of Idell & Seitel, who specializes in the intersection of entertainment, technology, and the law. He said the argument was reasonable — “If you are monitoring what comes on the site then you are controlling it, which is the opposite of saying I’m just a service provider. If I assert monitoring activities then somebody might say you could have found mine.”
I also asked John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School. He called the question of “if you take any affirmative steps to clean up the site then do you lose the ability to have the safe harbor” a “key tension” and a “big question” in this particular part of the law.
Of course, YouTube already proactively screens for pornography, an issue doubters such as Mark Cuban and Jackson have made much of. Legally, that stuff falls under the under the domain of decency laws, not DMCA.
But is the fear of leaving the protection of DMCA part of why Google is hemming and hawing about implementing copyright filtering, especially now that it’s ensnared in a serious lawsuit? Now that would be interesting.