The YouTube Approach to Copyright Infringement Claims
YouTube has been amassing an impressive list of music industry giants who have agreed to license their content for performance on its site. Recent additions to the fold include Warner Music and the UK Performing Rights Society. These are simply two more examples of the recent warming trend in the music and video copyright holding community's attitude toward YouTube
I recently attended a meeting of the California Copyright Conference which featured a panel appearance by Zahava Levine, YouTube's knowledgeable and enthusiastic Chief Counsel. CCC membership includes publishers, songwriters, attorneys, representatives from trade publications, performing rights societies, motion pictures, television, multimedia, Internet, and record companies. Given the amount of infringement of CCC member's copyrights that exists online, I half expected to see bushels of rotten tomatoes and crates of eggs to be hurled in Ms. Levine's direction.
There were universal complaints about diminished royalties from music in general -- much of which was attributed to Internet file-sharing. However, many, if not most, CCC members seemed to view YouTube as a possible savior and were eager to learn how to make money from the site.
As Zahava explained (and is further detailed on YouTube's site), YouTube offers audio and video copyright holders three options for dealing with unauthorized copyrighted material: a copyright holder can either block, monetize or track such unauthorized material. Under the "block" option, a copyright holder can send a DMCA notice to YouTube identifying the infringing material and requesting YouTube to take it down. Under the monetize option, a copyright holder can share in revenue, such as earnings from InVideo ads overlaid on videos and banner ads running next to videos. Under the tracking option, a copyright holder can simply choose to monitor traffic for videos containing its material, using YouTube's analytics tools.
To aid in these three goals, YouTube has created tools to identify infringing audio and video files on its site -- called "Audio ID" and "Video ID." Zahava explained to me that these operate as fingerprinting technologies. (Although "fingerprint" is not YouTube's preferred term for this process.) A copyright holder provides YouTube with a master audio or video file from which YouTube creates a fingerprint. This fingerprint is then compared to the millions of audio and video files in YouTube's system to identify infringing material. Participating copyright holders can than opt to either block, monetize or simply monitor the identified material -- the three options described above. Zahava did not provide the CCC members with specific metrics on the effectiveness of this technology, but indicated that it was one of the most effective in the industry. For more on YouTube's content protection programs, see http://www.youtube.com/t/content_management.
While some copyright holders would like to achieve complete control over their content and wring a dime or dollar from every performance, copy or distribution, this has never been possible. YouTube's approach brings the promise of at least some monetary returns -- even if these currently are far less than the rapidly vanishing dollars from CD and DVD sales. But who can say what the future holds.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
