Viacom and Google Should Share the Load

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In cases where media companies have already filed takedown notices, that technology can be used to match against the removed material and keep the same infringing content, or very similar versions of it, off the site.

Sophisticated Filters Needed

"The technology is being deployed and it is fairly good," says Mark Kirstein, president of research firm MultiMedia Intelligence. The U.S. market for such technology will grow to more than $500 million by 2012, he estimates. "It is not going to prevent everything, but it is vastly superior to the alternative, which is largely the content companies monitoring content almost manually and issuing takedown notices."

Google recognizes the potential of filtering technology (BusinessWeek.com, 10/16/07) and is working on its filters for YouTube to solve the re-uploading problem.

Of course, no filtering technology is perfect. There is a risk that filters will screen out noninfringing material, such as parodies of popular content, or fail to recognize a slightly changed version of the same infringing Saturday Night Live video, for example. "If you say that content is automatically taken down when the audio track matches [registered copywritten content], that is not good enough since the video could be completely different," says Corynne McSherry, a staff attorney at the Electronic Frontier Foundation, a nonprofit digital rights group. "It may be someday that filters become sophisticated enough, but right now I don't think they are there yet."

With companies such as Google behind them, however, filters are bound to get better. Even the EFF, which supports the DMCA law as is, doesn't have a problem when filters are used to take down material that matches content for which a company has already filed a notice, without user objections. They also don't object to filters that flag possibly infringing content for human review.

Cost Concerns

The key issue in Viacom vs. Google/YouTube is not whether the DMCA should be thrown out altogether or whether it is possible to keep users from uploading the same content. Really, all the arguing is over who should be responsible for paying for the policing. Google says it doesn't have to pay under the DMCA rules as written. Google is probably right. Viacom says it shouldn't have to shoulder the cost of YouTube's success by paying to have a third party screen all of the site's user-uploaded videos. That argument makes some sense as well.

Why not make both content creators and Internet companies pay? Both sides have an interest in policing content. Content creators want to protect their copyright and make sure they are adequately compensated from the sites with which they do have licensing agreements. And, as user-generated content sites mature, YouTube and others have an interest in ensuring that their sites are well-lit places on which marketers can safely place ads without worrying about offending a partner or unwittingly supporting pirated material.

Content creators could pay to watermark and register content, and still file initial takedown notices to sites. That way, Web sites would not remove content that creators willingly uploaded, say, to hype a new show.

For their part, Web companies could pay a fee to the same third-party company to scan user-uploaded material against a library of registered content with prior takedown notices. The fee could vary based on the amount of user-uploaded material that the site needs to scan, and thus should take into account the differences between a YouTube and a new startup.

It behooves content creators and Web companies to start exploring compromise. Judges often come up with verdicts that force companies to meet somewhere around the middle anyway.

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