Seminar Addresses Liability, Filtering Of User-Posted Online Content

By John T. Aquino for Intellectual Property Watch
WASHINGTON, DC – “What goes up on the Internet must come down because of copyright infringement until it goes up again,” according to James DeLong, moderator of a 16 March seminar hosted by the Progress and Freedom Foundation (PFF) in Washington, DC. An image of difficult tasks, proposed solutions that are premature, demands that cannot be met, and excuses that turn out to be myths ran through the seminar entitled, “What Goes Up Must Come Down: Copyright and process in the age of user-posted content.”

DeLong is senior fellow and director of the Center for the Study of Digital Property at the free-market PFF. The panel included the attorney for Viacom in its case against Google/YouTube, the massively popular user-upload video website.

The concept of liability in the 2005 Grokster decision and 1998 Digital Millennium Copyright Act (DMCA) arose from the uselessness of traditional copyright enforcement methods, argued Solveig Singleton, PFF senior adjunct fellow. In Grokster, the US Supreme Court held that file-sharing companies could be sued for inducing copyright infringement for acts taken in the course of marketing file-sharing software. The DMCA limits Internet service providers from copyright infringement liability for information they simply transmit over the Internet as long as they promptly remove it on notice.

“The courts are too slow,” she said, and so Grokster and the DMCA moved enforcement from the slow-moving public sector to the private sector and its emphasis on markets. Overreaching by content owners, Singleton said, does not pose as big a problem as massive infringement. What needs to be learned, she said, “is how to do fairness fast. That may mean new mediation institutions being formed online.” Singleton even questioned whether the extended liability through Grokster would make a web host liable if it did not filter content.

Introduced as an expert on these technologies, Bill Rosenblatt, president of GiantSteps Media Technology Strategies and managing editor of DRMWatch (an online newsletter covering digital rights management) compared the “two competing ideas” of notice and takedown versus filtering. He found the former provided for in copyright law, reactive, expensive for the content owner, and cheap for the network operator, and the latter a private sector technology, proactive, cheap for the content owner, and more expensive for the network operator.

The problem with filtering, Rosenblatt said, is that it is a technology that is “not mature.” Two ideas that should be investigated, Rosenblatt said, are standardising notice and takedown automation and filtering, plus copyright registration. But issues that technology will not solve, he said, are who verifies the identity of the allegedly copyrighted work, who gets the benefit of the doubt in disputes, and who pays for the technology.

Viacom as Victim

Attorney Don Verrilli, partner at Jenner & Block law firm and representing Viacom in its copyright infringement suit against Google/YouTube, said that the case boils down to who gets the online advertising revenue generated when users are watching copyrighted material on YouTube – YouTube or the copyright owners.

After claiming that there is no question that YouTube is copying material that is protected by copyright laws, Verrilli said that negotiations between Google/YouTube and Viacom broke down over the question of who is responsible for policing and monitoring this infringement. YouTube’s position, Verrilli said, is that the DMCA gives it immunity as long as it takes infringing material down once it is reported to them; consequently, the responsibility for policing and reporting infringement resides with the content owner. That would mean, Verrilli insisted, that Viacom would have to employ an army of people to monitor YouTube.

“Our answer,” he said, “is that this is not a situation that [the DMCA] contemplated since the provision’s purpose is to protect you when you are an innocent without knowledge of an infringement. We think it is extremely hard for YouTube to argue that it doesn’t know there is infringement on its site. That’s like saying you are shocked that there is gambling going on in Casablanca” (referring to the corrupt police chief Captain Renault’s line in the 1942 movie Casablanca, which he says at the same time a croupier is giving him chips that he has won).

In answer to a question, Verrilli said that YouTube already monitors its website for pornography and hate speech and has implemented filtering to prevent infringement of the works of companies that have agreed to do business with it. Singleton said that this last type of filtering “sounded a little like extortion.”

Verrilli also said that YouTube’s recent innovation of private user groups prevented Viacom and other content owners from doing the sort of monitoring YouTube says they should do since the user groups are private and cannot be monitored.

There was no representative for YouTube on the panel. Christian Dawson, business manager of sales and marketing for ServInt Internet Services, compared its situation as a web hosting provider to that of condominium owner who has sublet to an individual who has sublet a portion to someone else who has sublet a portion to someone else who has invited over friends who in turn have friends in and so on, and at one of these groups there is a party during which some strangers wander in; when there is a disturbance, the condo owner is told to stop the noise and has go from place to place and person to person to find out who is making it.

Similarly, Dawson said the Internet infringer may well be a blogger on the site of a customer of a customer of a customer of a customer who is the customer of the web host. He asked whether hosts should have to threaten to shut down a customer who gives them a million dollars a year in business unless they shut down a blogger that is five steps removed from them. Dawson, stating that 60 percent of his company’s customers are overseas, feared that whatever solution was arrived at would simply drive the content to the web hosting services of foreign companies.

Verrilli later replied that, while he liked Dawson’s condo analogy, common law has long known how to deal with this situation: the innocent landlord is not liable for copyright infringement for a band playing on his premises unless he has organised the event. By analogy, Verrilli again pressed his case against YouTube.

John T. Aquino may be reached at info@ip-watch.ch.