00:12 AM

Google's nonexistent YouTube problem

Law professor Tim Wu explains on Slate why all that copyright material on YouTube is really no problem at all for Google, deep pockets or no. It's simply not a problem because of the "safe harbor" provision of the Digital Millenium Copyright Act, which protects online providers from liability for user-posted infringements.

Under the DMCA, so long as a provider responds to notice of an infringement from the copyright holder, there is no liability - unless the provider was already aware the infringing content was there. Wu explains:

Companies are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down. Then, so long as YouTube acts "expeditiously" and so long as YouTube wasn't already aware that the material was there, YouTube is in the clear. In legal jargon, YouTube is in a "safe harbor." Earlier this week, when YouTube took down 30,000 files after requests from a Japanese authors' group, that was §512(c) in action.

This "safe harbor" provision came into being in the early 90s when the headlines were filled with promised of the "Information Superhighway." Hollywood's Jack Valenti was pushing for a law that would make providers fully liable for any copyright violation, whether they knew about it or not. That spurned the Baby Bells into action and the safe harbor clause (§512(c) of the DMCA) is the result.

But Wu's most interesting point is that Hollywood is not furiously lobbying to get rid of the provision; Hollywood actually loves safe harbor.

The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that's ultimately a nice arrangement.

YouTube's strategy is actually designed to take advantage of Hollywood's hatred for piracy in any form and its love of free publicity. By cutting deals to allow companies to advertise on their own content posted by users, they get to ride on the viral marketing of YouTube's post-and-share culture while monetizing the eyeballs. (I wrote about this shift in attitudes towards copyright violation here).

But in reaching out to Hollywood, YouTube has trumpeted a new program that allows them to search and identify copyrighted content. The plan is to alert the copyright holders to the content and allow them to request its removal or play ball and find a way to exploit its presence on the site. By running a program that tells YouTube about infringing content it is limiting its own safe harbor claims. And since YouTube can build it, the expectation will be that anyone can build it. Thus, there is no excuse for not knowing about infringing content and the safe harbor defense may be whittled away.

At least that's one way it could go. Since Google is so interested in pushing the envelope on copyright law, they should watch out that they don't push away their own interests in the current law. Technology really is a double-edged sword.