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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 […]

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.

  1. Does YouTube proactively screen for pornography? I thought they counted on users to report it to them.

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  2. [...] screening content before it’s posted to the site, would YouTube leave the safe harbor of DMCA? Continue Reading… Share/E-mail | Sphere | Print | Topic: Asides | Tags: [...]

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  3. Came across two links of interest for further reading. First, Viacom’s general counsel Michael Fricklas wrote an editorial for the Washington Post yesterday. Further, the architect of the DMCA, Bruce Lehman, argued at a McGill University copyright conference that the DMCA is broken.

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  4. Bob,

    I’m not sure that I have it in my own notes from talking to YouTube that the company screens for pornography, so please correct me if I’m wrong, but here are a few sources that allege this is true:

    Viacom lawsuit: “YouTube proactively reviews and removes pornographic videos from its library”

    Mercury News editorial: It already screens postings to filter out pornography and profanity

    I’d love to have a more direct quote but I can’t find one at the moment.

    Liz

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  5. Liz, are we even sure YouTube qualifies for safe harbor? In your article, you were saying how companies gain safe harbor “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” but the fact is that YouTube doesn’t transmit the material through their systems, they host the material.

    There are also some other provisions of the safe harbor, and I am not sure YouTube really qualifies. Course, I am no lawyer.

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  6. Well, Viacom is clearly not a disinterested party that can be counted on to tell the truth in this matter. It’s also possible for YouTube to tell if a video is pornographic just by looking at it, while you can’t tell if a video infringes copyright just by looking at it.

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  7. Even if GooTube qualified for it, I think the DMCA exception is valid only until receiving a notice from the copyright owner. After that the content provider is liable and must take the infringing material down.

    GooTube received Viacom’s notifiation some time ago; as I understand it, they cannot make use of the exception as of the notification date.

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  8. What about applying the technology to locate and remove only infringing materials object of take down notices?

    This way GooTube wouldn’t be editing, monitoring nor taking “afirmative steps to clean up the site”, but only responding to copyright owners’ requests, as the DMCA states.

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  9. I’m a little late to this party, but section 512(i) says that ISPs must accommodate technology to maintain their safe-harbor status. Namely, they have to shut down the accounts of repeat infringers and “accommodate and not interfere with standard technologies.” It is arguable that this could include a filter, especially an automated one that disables clips without human intervention. I mean, what would a copyright filter be but a standard technical measure?

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