Google and YouTube: A Catch-22

Corporations have complained about YouTube's copyright infringements, but if Google complies with their wishes, it risks angering users

by Catherine Holahan

Legal action from News Corp. concerning leaked episodes of the prime-time drama 24 has set the clock ticking for Google. On Jan. 18, the media conglomerate, which owns Twentieth Century Fox and user-content site MySpace, filed a subpoena in a U.S. District Court demanding the identity of "ECOtotal," a YouTube subscriber who had also uploaded episodes of The Simpsons to the video-sharing platform. Google must now decide whether to release information.

In a statement, a Google (GOOG) spokeswoman said the company "promptly" removed the copyrighted videos after Fox filed a notice on Jan. 8. She refused to comment on the recent subpoena, saying only that the search giant would "comply with valid U.S. legal process." By Friday evening, Fox had not yet received any information. If Google complies, News Corp. (NWS) would likely want it publicized to potentially deter other YouTube users from illegally posting its shows.

Difficult Decisions

The subpoena has put Google in a position akin to 24's hero Jack Bauer, deciding whether to save his life or prevent the city from being blown up. If Google complies, it risks angering YouTube's users, many of whom want their identity protected and some of whom undoubtedly visit the site in hopes of viewing leaked or copyrighted material. If it doesn't, it could frighten advertisers who are already skittish about associating their brands with unknown user-generated content and concerned about exposure to copyright suits (see BusinessWeek.com, 10/10/06, "YouTube's New Deep Pockets").

That's not to mention the additional financial risk Google faces by getting into a legal battle with deep-pocketed Rupert Murdoch, says Forrester Research (FORR) analyst Josh Bernoff. "It is a pretty high-stakes situation now," says Bernoff.

In the past, Google has both rebuffed and surrendered to requests for user information. It refused to give the U.S. government access to user search data related to pornography (see BusinessWeek.com, 2/9/06, "Google's Search for Respect in D.C.").

A "Quiet History"

However, Google does have a quiet history of revealing information about users accused of copyright violations, says Fred von Lohmann, a staff attorney at the Electronic Frontier Foundation, who has been involved with subpoena fights concerning Google and its users. Typically, von Lohmann says, Google gives users 20 days' notice and an opportunity to respond before handing over information. In YouTube's privacy policy, the company indicates it will release identifiable information that it believes is necessary to enforce its Terms of Use, which bans uploading copyrighted material, or protect itself against liability and "third-party claims or allegations," among other things.

Von Lohmann believes that Google will release the registration information on "ECOtotal," but it won't be of much help. "In all likelihood, all the information will have been fake," says von Lohmann.

In seeking the information from Google and also LiveDigital, a lesser known video-sharing site that had the 24 episodes as well, News Corp. also faces a difficult choice. While it wants to deter copyright violations by proving it will go after individual offenders, it also doesn't want to alienate existing or potential fans of 24 or any other series by being too heavy-handed. And it likely doesn't want to hold user-generated sites to too high a standard, given that its own MySpace has had its share of threats from content providers who were upset that the site showed their material without permission (see BusinessWeek.com, 9/18/06, "Sour Musical Notes on YouTube, MySpace").

Calming Content Producers

Von Lohmann believes that News Corp. went as far as seeking a subpoena for the information in this case because the 24 episodes were released before the show aired, indicating that someone with advanced access—potentially an employee or member of the media—leaked the shows. "I think the Fox subpoena issue was a special case because they smell a rat in their own house," says von Lohmann.

Even if Google gives over the information, it may not be enough to satisfy content providers in the long term. YouTube has faced threats from copyright providers in the past who argued that its policy of taking down infringing material from the site was not enough.

On July 14, 2006, YouTube was sued by independent filmmaker Robert Tur, who alleged the company repeatedly allowed his copyrighted footage to appear on the site, despite his requests to remove it (see BusinessWeek.com, 8/7/06, "Whose Video Is It Anyway?"). Others content providers, such as Universal Music Group, have weighed suing the site in the past. However, Google and YouTube were able to silence many of those grumblings through partnerships.

Todd Dagres, a partner at Spark Capital and investor in video site Veoh, says that the subpoena underscores the pressure all video sites are under to proactively remove copyrighted material before receiving take down notices. He said Veoh is working on a more active solution. So is Google, which is reportedly looking into technology that can recognize the video or audio signature of known copyrighted material, and potentially block it from uploading. The technology, however, would likely be used first in cases where a copyright owner has already complained. "These sites are going to have to be better at self-policing," says Dagres. "The days of turning a blind eye, waiting until you get a letter, I don't think that is going to last forever."

Holahan is a writer for BusinessWeek.com in New York.