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Watershed Moments In Internet History: Mark Your Calendars. Google Won.

By Colleen Quinn

June 23rd, 2010. 6/23/10. It’s a real shame the numbers don’t have more of a ring to them. A verdict on the 10th of October (e.g. 10/10/10) might be more resonant. But, even if the date doesn’t roll off the tongue, mark my words: this is a date which will live in infamy for content distributors and content owners everywhere.

This is the day Google won. In a potentially landmark decision (though one with many, many appeals in its future), a federal judge in New York threw out Viacom’s $1 billion copyright infringement lawsuit against Google’s YouTube.

It’s a long story—and one made-for-Hollywood with its subterfuge and plot twists. But, in short, Viacom sued Youtube for boat loads of money for copyright infringement– that is, knowingly posting copyrighted materials to the site, without financial remuneration to the rights holders.  In one of the truly major tests of the “safe harbor” provisions of the Digital Millennium Copyright Act, the judge found that YouTube/ Google were not liable. Title II of the DMCA generally protects a Web site from liability for copyrighted material uploaded by its users as long as the operator of the site takes down the material when notified by its rightful owner that it was uploaded without permission.  So, in the judge’s estimation, YouTube met this test.

But, here’s the good stuff: the case evidence dated back to some pretty shady pre-Google-acquisition days, and highlighted alleged tactics that pointed fingers at YouTube’s founders. Equally bad behavior was alleged on the part of Viacom, who was accused of hiring a clan of promotions companies to upload “leaked” Viacom content to the site under pseudonyms. Naughty, naughty.

The fact of the matter is that YouTube—and YouTube-like services—are the way of the future in the eyes of the consumer. And, while no one can say YouTube is perfect in its attempt to “protect” content-owners, they surely seem to meet the DMCA provisions with the processes and technologies they’ve implemented to alert copyright owners. I just listened to a fascinating TED Talk last week from Google’s Margaret Gould Stewart, where she outlined YouTube’s methodologies to alert content owners to rights infringements.

YouTube has created a massive registry for rights holders where they can upload reference copies of their content. Then, YouTube runs EVERY piece of newly uploaded content against that registry—analyzing picture, audio, and more—to identify matches. The system is so sophisticated, allegedly, that it can account for quality degradation, video effects (slow-motion or speed-up), clip-extracts and more. When a match is found, the system alerts the copyright owners, who can then block the content altogether, or monetize it through advertising and product promotion.  It’s a fascinating process—and the technology was so, well, cool that I was awestruck.

Then, I waited a few minutes, and started to scoff at this notion of protection for content owners. Perhaps it’s all my years having been a “content creator” and working for and with content owners. But, I couldn’t beat away the nagging question: why is the burden on the rights holder? And, I assure you, that same question was likely one of the largest on the minds of Viacom execs as they embarked on a now 4-year journey to take-out YouTube.  It’s a large burden indeed.  To protect your content, you must encode, upload and capture metadata about EVERY piece of content you own; you must think through and capture your protection policies about that content; and, you must review notifications when protected content is uploaded to determine the desired response (e.g. remove vs. monetize). Whipping out my calculator here, I see that amounts to a load of operational cost, resources and time for already strapped businesses.  Imagine similar and probably more unwieldy processes taking place across other UGC aggregation sites. I’m not sure how that scales, even in the face of the revenue upside.

So, here I leave you with two sides of the coin. I should say that I am pleased with the verdict. And, I am, for the most part, impressed with YouTube’s processes to screen content, though I hesitate to see YouTube in the same beatific light they themselves suggest. There’s no question that YouTube and rights holders need to be, more than ever, partners in this eco-system. And, I’m not so sure we needed a judge to even confirm that. But, confirm he did. Here’s to 6-2-3. A milestone, indeed.

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