Filmmakers say their material is being unfairly removed from video-sharing sites, accusing Viacom and its ilk of censorship
Amateur filmmaker Matt Hawes thought his video spoof of MTV's The Real World was sufficiently funny to get noticed on YouTube. But the Indiana resident wasn't laughing earlier this month when his video grabbed the attention of MTV parent Viacom (VIA) and was removed from the video-sharing site for alleged copyright infringement. "It was a parody of reality television in general," says Hawes. "Obviously no one had bothered to watch it."
Then, Hawes got downright serious. He e-mailed and wrote letters to the staffs at YouTube, Viacom, and the Electronic Frontier Foundation (EFF), a nonprofit legal group, asserting that his work was unfairly caught up in Viacom's dragnet (see BusinessWeek.com, 2/2/07, "Viacom's High-Stakes Duel with Google"). Viacom reviewed the clip and it was restored to YouTube four days after it was taken down. Still, Hawes is upset. "Copyright infringement is a crime, and my view is if they are going to accuse people of a crime, they have to make sure it is a crime," he says.
Hawes isn't the only one up in arms. At issue is the interpretation of a law called the Digital Millennium Copyright Act, which lets copyright owners require the removal, or takedown, of material made available illegally over the Internet.
Cases on the Rise
EFF staff attorney Corynne McSherry says her organization has seen a recent surge in the number of cases, brought on behalf of people such as Hawes, involving misuse of the act's takedown procedure. The EFF has handled more than eight cases in the past 12 months and has a video on YouTube asking users whose clips were unfairly removed to contact them. Users of the site, acquired by Google (GOOG) last year, have viewed the video more than 11,000 times since it was uploaded on Feb. 8. Those who believe their work was erroneously taken down may contest the action with letters and, if need be, litigation.
The problem, in McSherry's view, is that the content owners are not thoroughly investigating material flagged by automated screening systems before requesting removal. Even worse, she says some content owners are deliberately demanding removal of videos that are simply unflattering to their brand in hopes that the videos will be removed and their creators will just shrug and move on. "The shoot-first-ask-questions-later approach really ends up silencing speech because most people don't have the opportunity to get pro bono lawyers to help them," says McSherry, adding that content owners must be sure clips infringe before requesting removal.
Content owners argue they're doing the best they can to find and correctly separate their content from the 100 million videos streaming on YouTube each day, not to mention the millions of videos uploaded to hundreds of other sites. Viacom says it has spent hundreds of thousands of dollars searching just YouTube. The company notes that, of the 100,000 clips it has asked YouTube to remove, less than 0.1% (roughly 60 clips) were mistakes.
Placing the Burden
More to the point, Viacom maintains that content owners like itself shouldn't even be in the position of continually filing takedown notices. If video-sharing sites did a better job of keeping their content off the site in the first place, they argue, content owners could be more careful about what, if anything, they ask to be removed. "It takes a lot less computer resources to have one guy looking at the stream that is uploaded [to video-sharing sites] than to have everybody looking at the Web sites every day," says Viacom General Counsel Michael Fricklas.
Viacom and other content owners have argued that YouTube and other video-sharing sites should work with so-called digital fingerprinting companies that help content owners vet material. Offending clips are automatically blocked or permitted, according to rules set by the site (see BusinessWeek.com, 2/13/07, "Cracking Down on Video Piracy").
YouTube and Google and other site owners say they are complying with copyright law, removing infringing material as soon as they are made aware of it, and doing their best to keep such material off their sites with their own filters. They also are looking into other screening technologies. However, YouTube officials say the available technologies do not account for all the different ways copyrighted material can be altered.
While the EFF thinks responsibility for identifying violations really rests on the copyright holders, McSherry says staff at video-sharing sites should also review alleged violations before taking down clips. However, it's unlikely the site owners would willingly take on the responsibility of judging between violations and fair-use cases, let alone the risk of lawsuit if they judge wrong, says John Palfrey, executive director of Harvard Law School's Berkman Center for Internet & Society. "The default action for intermediaries is just to take it down sight unseen and deal with the consequences later, and if you dot your I's and cross your T's you won't incur any liability," says Palfrey.
The EFF is hoping that favorable verdicts and monetary awards could scare content owners into being more judicious about takedown notices. Meanwhile, content owners are hoping their threats of lawsuit will compel video-sharing sites to better screen out copyrighted material.
All the fingerpointing doesn't seem to make any sense to Hawes. "They are both multibillion-dollar companies," Hawes says of Google and Viacom. "If they are going to take this kind of action against us, then it is a responsibility of both companies to review videos."