Filtering and Fair Use

 By Paul Wachter
January 23, 2008 (NEW YORK)--“How many of you use YouTube?” Harvard Law Professor John Palfrey asked an audience of Columbia students on Tuesday. Nearly every hand went up.
“And how many of you use it for watching TV shows and other copyrighted material.”
There was the same show of hands.   
 While YouTube and other video-sharing Web sites have been a boon to consumers, allowing them to keep up with their favorite TV shows among other offerings, they pose a tremendous financial threat to the companies that produce the material for profit. The legal implications behind this new technology were the subject of a discussion on “User Generated Content, Filtering and Fair Use” led by Palfrey and Debevoise & Plimpton managing partner Jeffrey Cunard, part of the Kernochan Center’s spring Intellectual Property Speaker series.
 The main point of discussion was the lawsuit filed by Viacom against Google (owner of YouTube) for hosting copyrighted material — in Viacom’s case, popular television shows such as “The Daily Show” and other Comedy Central offerings.
“The question is: who is responsible?” said Cunard, who has worked on copyright litigation for more than 20 years, beginning with the landmark case in which Sony unsuccessfully sued Betamax over pirated videocassettes. “Is it the distributor? Or is it the uploader? Or are both responsible?”
 The case rests on the interpretation of the 1998 Digital Millennium Copyright Act (DMCA), which holds, among other things, that “fair use” of copyrighted material is legal. As commonly understood, it is legal to use copyrighted material if it has been altered or amended for the purposes of analysis, satire or buffoonery. But it’s not fair for a web site to simply host the original product, unaltered, without the consent of the copyright holder.
YouTube has argued that its site also provides a forum for all sorts of material, and that it should not be held liable if some of it is copyrighted. YouTube is echoing Betamax’s position, Cunard said, which successfully argued that while its machines could be used to illegally copy material, their intended purpose was for licensed video play and personal recording ­— not copyright infringement. But Viacom holds that YouTube’s business model is predicated on hosting copyrighted material, Cunard continued, the very same argument that in 2005 led the U.S. Supreme Court to rule against Grokster, a music sharing site, in its dispute with MGM Studios.
 Viacom v. Google should go a long way in determining the future of YouTube and other Internet sharing sites, as well as the future of businesses that are potentially losing great sums of money by the sharing.
Focusing on the nuances of these IP issues, Palfrey said that under the DMCA, sharing sites are in compliance with copyright laws if they remove files at the request of copyright holders that demonstrate such files do not qualify for fair use. YouTube typically complies with such notices, but some critics contend that they do a better job of doing so for companies, such as Warner Brothers, with which they’ve already struck a deal.
 Moreover, Palfrey said, available technologies allow YouTube and other sites to filter out much of the copyrighted material ­— for example, performing screen searches of Julia Robert’s face to detect copyrighted material in which she appears. The company has been highly conscientious about screening out pornography ­— especially child pornography that would bring on serious legal problems.
“So, if they can screen for porn, why can’t they do the same level of screening for copyrighted material?” Palfrey asked.
At the same time, uploaders of copyrighted material who have their videos yanked can also sue if they can demonstrate that they were using such material within the guidelines of fair use.
Ideally, both speakers agreed, such legal intricacies would not be left up to the courts, but the parties themselves would come up with the appropriate business answers. But unfortunately, with the numerous conflicts of interest arising, both real and perceived, that is unlikely to happen.