Viacom and Google Should Share the Load

Viacom's suit seeks a better way to remove copyright-violating YouTube uploads. Why don't content creators and Web sites both foot the bill?

by Catherine Holahan

To hear Google (GOOG) tell it, Viacom (VIA) wants to unravel the social Web. If Viacom had its druthers, Web sites that rely on user-generated content would be held responsible when users upload material that violates copyrights, Google argues in a public response to Viacom's $1 billion lawsuit accusing Google of copyright infringement.

The implication, Google argues, is that services like video-sharing site YouTube would have trouble getting off the ground. "Viacom's lawsuit challenges the protections of the Digital Millennium Copyright Act that Congress enacted a decade ago to encourage the development of services like YouTube," Google wrote in its May 26 response. "Congress recognized that such services could not and would not exist if they faced liability for copyright infringement based on materials users uploaded to their services."

Reposting Problems

Google is only partly right. It's true that doing away with certain DMCA protections—such as those that shield Internet companies from liability for distributed content—would indeed hamper many sites. After all, it's nearly impossible for companies to ensure that all the videos, photos, comments, and other content uploaded to sites don't violate copyrights. Even if such omniscient content screening were possible, it would undoubtedly be cost-prohibitive for all but the largest players.

But Viacom isn't looking to dismantle the DMCA, though its suit does point to a major flaw in the law that Web sites and media companies both must address: what to do when infringing content is taken down but then immediately put back online. "Even after it [YouTube] receives a notice from a copyright owner, in many instances the very same infringing video remains on YouTube because it was uploaded by at least one other user, or appears on YouTube again within hours of its removal," Viacom says in its complaint.

The DMCA needs an upgrade. Enacted in 1998, the law needs to reflect advances that make it simple to continually post and repost offending material. Media companies like Viacom shouldn't have to file notice after notice to the same site concerning versions of the same piece of content.

When the DMCA became law, user participation was largely confined to AOL chat rooms and peer-to-peer services. As a result, it was feasible for media companies to police their content by searching for unlicensed uploads and filing takedown notices.

"Fingerprinting" Content

Much has changed. Now users are uploading videos, photos, and audio files to video-sharing sites, social networks, blogs, and even sites owned by major media companies. Viacom's MTV.com, for example, lets users upload photos and videos. The number of people uploading content and the speed with which they do it has made filing takedown notices ineffective for media companies that produce large amounts of popular content.

In some cases, by the time a site responds to a takedown request for a popular piece of content, another slightly altered version of that clip or photo has already been uploaded. Under the current law, the media company often has little choice but to file yet another takedown notice for that slightly altered version and hope that someone doesn't simply upload the same material in the interim.

The technology exists to make additional protections for copyright owners possible. Companies such as Audible Magic, Nielsen Media Research, and Vobile all have digital fingerprinting or watermarking services that enable content creators to register content in a central database that can then be scanned by Web sites for matches to user-uploaded content.