Media Bigwigs Set Guidelines for Policing Web Videos

UPDATED: Leading Internet and media companies teamed up today to set ground rules for dealing with copyright infringement in videos uploaded to user-generated content Web sites — and demanding stronger efforts on the part of content hosts.

Those companies — which include CBS Corp., Microsoft Corp., NBC Universal, News Corp.’s Fox and MySpace units, and Walt Disney Co. — today released guidelines spelling out a series of “obligations” they want user-generated-content (UGC) sites to adhere to, such as searching for and removing copyrighted video that has been posted without permission.

Video uploading and sharing sites DailyMotion and Veoh also endorsed the guidelines. Google, which owns YouTube, was noticeably absent from the group that issued the guidelines, but sources close to the matter told that the search leader had some input in their development.

The guidelines, labeled the “Copyright Principles for UGC Services,” specifically call for the implementation of new technology to block infringing uploads before they reach the Web. They also urge the removal of links to sites that are “clearly dedicated to, and predominately used for, the dissemination of infringing content.”

These two guidelines in particular raised red flags among legal experts, who suggested that even a good-faith effort to establish industry standards around content uploads might have the unintended effect of raising incendiary free-speech and antitrust issues.

Jeffrey Lindgren, an intellectual-property lawyer at Morgan Miller Blair in San Francisco, cautioned that indiscriminate blocking of uploads could end up trampling on protected speech.

“There are tremendous gray areas,” Lindgren said. “Technology to block uploading may be the Holy Grail for these huge content providers because it will save them the trouble of policing everything that is being posted, but will the technology really be able to distinguish content that clearly infringes on copyright from that which represents fair use?”

In a statement accompanying the proposed voluntary guidelines, the companies issuing them said that any technology implemented to block uploading must “effectively balance legitimate interests, including fair use.” The guidelines also call for the establishment of procedures to promptly address claims that content was blocked in error.

Top executives of the media companies behind the UGC guidelines stressed that they seek to balance the Web’s creative potential with the rights of copyright owners.

“Cooperation among us, aided by emerging technologies, can clear the way for further growth in the availability of online video in ways that will be good for consumers, good for copyright owners and good for uploading services,” Bob Iger, president and CEO of The Walt Disney Co., said in a statement.

According to the guidelines, media owners will provide reference data to be used by the sites in locating and blocking copyrighted videos.

“If the Copyright Owner indicates … that it wishes to block user-uploaded content that matches the reference data, the [user-generated content site] should use the Identification Technology to block such matching content before that content would otherwise be made available on its service,” the guidelines state.

Is Big Media making anti-competitive moves?

Additionally, further problems could stem from the fact that the media companies issuing the guidelines are in most cases major online content distributors as well as creators. Lindgren said that the call to remove links from sites they identify as chronically infringing on copyrights could be viewed as an attempt by dominant, vertically integrated players to stifle competition.

“It could raise the issue of fair competition, and it could cause people to question whether these guidelines are for the benefit of the big conglomerates,” he said.

Several industry analysts interpreted the guidelines as an attempt by the media companies to address deficiencies in the federal Digital Millennium Copyright Act (DMCA), which was enacted in 1998 before the explosion of video uploading and file sharing. The Safe Harbor provision of the DMCA provides protection from copyright infringement liability to companies that post warnings about infringement on their Web sites and remove copyrighted content promptly when brought to their attention.

“In general, the guidelines are a responsible effort to establish industry standards,” said Edward Naughton, intellectual property partner at legal firm Holland & Knight. “It makes sense for the big players to figure out a way to avoid these huge infringement lawsuits, and for the UGC services to agree to some ground rules. But, ultimately, these issues may need to be resolved by Congress amending and updating the DMCA.”

Google has cited the DMCA’s Safe Harbor provision in its defense against Viacom’s $1 billion lawsuit, which alleged massive copyright infringement on YouTube. The complaint, filed in March in the U.S. District Court for the Southern District of New York, contends that approximately 160,000 unauthorized video clips of Viacom programming have been uploaded and made available on YouTube, where they have been viewed more than 1.5 billion times.

Google’s game

The search giant this week took some steps to insulate itself from the copyright controversy, launching a new service on YouTube that it said would enable content owners to locate and pull down video posted in violation of copyrights “within minutes” of being uploaded.

The company said the automated YouTube Video Identification system would let it ban accounts belonging to repeat violators and uniquely identify and prohibit future uploads of videos removed earlier for copyright violations. The system, currently in beta, cannot prevent a user from posting illicit material, however — making it weaker than the technology called for in the guidelines document.

A source close to Viacom said Thursday that Google’s claim that its new system would enable it to take quick action against violators is “a positive development.”

“If it really can pull this stuff down two minutes after it’s uploaded, that would be a major step forward,” he said.

Still, it might be some time before Google can formally join Viacom and the other media conglomerates in supporting the UGC copyright guidelines. For one thing, it would have to wait until Viacom’s lawsuit is resolved.

Analysts also suggested that Google has staked out a clear position on the side of providing universal access to content over the Web, and therefore may not want to dilute its position by endorsing restrictive guidelines issued by content providers.

“They may endorse [the guidelines] eventually, but they do not need to get out in front of this,” one analyst said.

In addition to calling for new technology to block uploads of copyrighted material without permission, the guidelines urge UGC sites to “promote respect for intellectual property rights and discourage users from uploading infringing content.”

Lindgren said the inclusion of some UGC sites among the guidelines’ supporters signals that the video sites realize they need to reach an accommodation with the large content providers regarding copyright infringement.

“Clearly, the content providers want the UGC players to take on more responsibility and play a greater role in policing copyright infringement, and perhaps the service companies are recognizing that they will need to do this to play with the big guys,” he said.

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