These days, most of the entertainment I seek comes from the internet. Recently YouTube rolled out some changes to its automatic Content ID system raising some ire from the site’s community. I might as well take the opportunity to talk about the implications of the changes on the legal side, as I think the automated system raises some legal issues.
The crux of the change is to comply with copyright laws dealing with sites based on the generation of user-based content. United States copyright law currently favors the legacy industries, and the big businesses have repeatedly attempted to curb attempts by smaller upstarts to compete with their business models. YouTube survives because Google backs it, as a smaller company like video sharing site Veoh went bankrupt trying to defend itself from copyright infringement claims filed by Universal. Courts are still trying to decide to what extent service providers are protected from copyright litigation arising from the behavior of the provider’s users, and the precedent has evolved so that YouTube can win its copyright case against Viacom while Napster did not convince the court it was taking enough steps to combat the infringement that users committed when file sharing music and lost its identity as a result. Still courts recognize that if a service provider sets up rules and regulations to prevent users from engaging in copyright infringement, the service provider cannot be held responsible for damages arising from the users infringing content.
Users may argue that the automated system infringes on their rights to due process, but the legal justification is shaky. One of the main changes rolled out is that the automated system for detecting copyrighted content now applies to multi-channel networks, groups of YouTube users who banded together partially because they wanted their group rather than the computer system to verify if any infringing content were uploaded to one of the channels. However, the relationship between YouTube and its community relies on the contract users agreed to when they created accounts. Furthermore, placement of automated claims does not put the user in bad standing; instead it prevents the user from earning money from advertising that would run on the uploaded video. The difference is the balancing of factors in a fair use defense. One of the factors in the defense is the nature of the content being uploaded. While a commercial product can still be eligible for this defense, it is accorded less protection than if the product is educational. A review of a video game that uses excerpts of the product and does not include YouTube advertising has a better chance of succeeding in a fair use defense than a full playthrough of a video game with incidental commentary with advertising revenue directed at the user uploading the playthrough instead of the owner of the video game copyright. Since fair use is an affirmative defense, it’s up to the user to prove the copyright infringement claim is unfounded, so YouTube’s expansion of the automated system is more of a precautionary measure against attacks companies make on the service provider’s immunity to suit for actions of the user base.
The broader scheme seems to be Google’s attempt to encourage more original content developed on its services. The YouTube community may abhor the changes in preventing monetization of entertainment on the site, but no clear competitor for internet video watching and sharing is currently available. If the automated system skews towards entities placing copyright claims rather than users uploading what people want to watch, than the user base will find methods around the automated system, preferably by creating even more original content. The more original content Google can serve its user can increase the company’s negotiating power with the legacy entertainment industry over licensing content to deliver to Google’s users. I suppose the laws could be changed to move copyright laws away from protecting the copyright owner’s interest and toward the public good of inspiring artistic and original expressions, but we’re having a hard enough time already attempting to challenge proposals to make copyright even more stringent.