Beware of Google bearing copyright tips

Wednesday, 17 October 2007 09:52 Noric Dilanchian

Google (the owner of YouTube) has just announced the release of a beta version of a video filtering tool. It has named it YouTube Video Identification. This supports Google's corporate copyright law compliance (and survival against legal threats).

It is also another step towards protecting content owners whose copyright work is uploaded into YouTube without permission and then copied over, in virus-like fashion, to innumerable other sites. It's a massive problem for audio-visual content owners. For many of them YouTube is a punk, not a new kid on the block.

YouTube Video Identification has been developed internally after looking outside algorithm fortress Google. As for audio copyright works (largely music), in February 2007 Google licensed copyright filtering technology for YouTube from AudibleMagic.

Google's announcement emphasises that its latest attempted technology fix is part of a package of protections.

Before assessing Google's move, here's the 15 October 2007 Google announcement in part (emphasis ours):

• Our strict repeat-infringer policy, which has been in place since our launch, terminates accounts of repeat infringers based on DMCA notices.
• We take a unique "hash" of every video removed for copyright infringement and block re-upload of that exact video file prospectively.
• We require a 10-minute limit on the length of content uploaded to the site.
• We provide content owners with an electronic notification and takedown tool, to help them more easily identify their material and notify us to take it down with the click of a mouse.
• We also publish copyright tips [Comment: US law only] for users in plain English and clear, prominent messaging at the time of user upload.

This Google copyright compliance package therefore includes legal and policy restrictions on users, a continuing 10 minute limit on the length of videos, takedown software tools provided to copyright holders, and copyright tips.

However, beware of Google bearing copyright tips. Google is famous for pushing copyright law beyond traditional limits. Conveniently for Google, its copyright tips only reference United States copyright law.

• Copyright owners must of course deal with threats emanating from uploaders worldwide. Hence Google has received litigation papers and letters of demand in 2007 expressing concern against copyright infringement in YouTube. Reported cases include: (1) Viacom's in the US, (2) English soccer's Premier League, and (3) the Japan Society for Rights of Authors, Composers and Publishers.
• A US-centric perspective on copyright law can turn to mud the complexity of considerations for effective legal action outside the US against unauthorised uploaded videos. Australian copyright law, for example, has the concept of "fair dealing" which is narrower than the US "fair use" concept referenced in Google's copyright tips page. Generally you can get away with a lot less copying under Australian copyright law than under US law. This is just one of the differences.
• Google's deep pockets help. Additionally, the location of Google's servers may make some difference for blocking anti-Google actions. However the location of servers made no difference in the loss by the US defendants in Gutnick v Dow Jones and Company Inc. (under Australian defamation law) or the massive loss by the defendant in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [Kazza case] (under Australian copyright law). Kazaa in late July 2006 agreed to pay A$152 million (US$115 million) compensation for past IP infringements. Perhaps the ongoing Australian Competition and Consumer Commission (ACCC) court case against Google may shed light on the extent of the difference the location of servers makes.

Google remains arguably the leading force worldwide in re-framing what is lawful under copyright law today.

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