The real pirates

[DeeDee Halleck]

Cory Doctorow <http://www.guardian.co.uk/profile/corydoctorow>
guardian.co.uk <http://www.guardian.co.uk/>, Monday 12 December 2011 10.27
EST
Article history<http://www.guardian.co.uk/technology/2011/dec/12/pirates-of-youtube-cory-doctorow#history-link-box>


[image: YouTube logo]

YouTube offers very little help for FedFlix

When you hear about "piracy <http://www.guardian.co.uk/technology/piracy> "
in connection to YouTube, perhaps you think of the billion-dollar lawsuit
brought by Viacom against the Google division, claiming that Google should
have the duty to police all of its users' uploads to determine that they
don't infringe copyright.

Google does something very close to this already, of course: the company
offers a service to rights holders called "ContentID" that is meant to
automatically police copyrights on their behalf. Rights holders upload
copies of their copyrighted works to YouTube and identify themselves as the
proprietors of those works, and YouTube scours its files for videos or
audio that appear to be connected with those copyrights.

Rights holders get to decide what happens next: they can ask Google to
automatically remove matching files (Google then notifies the user that her
files generated a copyright match and offers them the opportunity to
contest it), or they can "monetise" the video by asking Google to display
ads whenever it is played back. The revenue from these ads goes to the
rights holders.

ContentID does a lot more than US copyright law requires of rights holders.
Under the US Digital Millennium Copyright Act of 1998, services like
YouTube enjoy a "safe harbour", that shields them from liability for
copyright infringement. In order to maintain this safe harbour, YouTube
must "expeditiously" respond to notices of copyright infringement by
removing the offending works. But the law does not require YouTube to
proactively search for infringements and remove them. Running ContentID
isn't a legal duty, it's an olive branch extended by YouTube to the
audiovisual industries.

ContentID is contentious for many reasons. Viacom says it doesn't match
enough of its works, and complains that it shouldn't have to tell Google
which copyrights it owns – Google should just figure this out and block
Viacom's works *a priori*.

But one titanic problem with ContentID has received little attention: the
use of ContentID by those who falsely or incorrectly assert ownership over
public domain works – works that have no copyright at all – and then either
block access to the videos, or collect the advertising revenue from these
videos.

FedFlix is a charitable project launched by Carl Malamud, a "rogue
archivist" who raises funds to digitise and upload videos created at US
government expense. Under US law, government creations are in the public
domain and can be freely used by anyone, but the US government is
remarkably lax about actually making its treasures available to the public
that owns them.

Malamud's group pays the fees associated with retrieving copies from the US
government – sometimes buying high-priced DVDs that the government issues,
other times paying to have unreleased videos retrieved from government
archives – and posts them to YouTube, the Internet
Archive<http://www.archive.org/index.php> and
other video sites, so that anyone and everyone can see, download, and use
them.

Malamud's 146-page report from
FedFlix<https://public.resource.org/ntis.gov/contentid.pdf> to
the Archivist of the United States
<http://www.guardian.co.uk/world/usa> documents
claims that companies such as NBC Universal, al-Jazeera, and Discovery
Communications have used ContentID to claim title to FedFlix videos on
YouTube. Some music royalty collecting societies have claimed infringements
in "silent movies".

These companies' claims – there are hundreds of them – has the potential to
generate black marks on FedFlix's YouTube account, and these black marks
could lead to automated punishment from YouTube. Accounts that generate
claims can be suspended or deleted, or lose the right to mark videos as
being available as Creative Commons or public domain files.

YouTube offers very little help for FedFlix. ContentID's dispute resolution
mechanism allows FedFlix to contest these claims under only three
circumstances: first, ContentID has generated a false match (that is, the
video isn't what ContentID thinks it is); second, the uploader has the
right to the file, as demonstrated by written permission from its
proprietor; or third, the use is acceptable under the US doctrine of fair
use, or its counterpart in other laws, fair dealing.

But FedFlix can't contest on any of these bases. ContentID isn't mistaken –
the files are exactly what ContentID thinks they are. But no rights holder
can send a written permission notice to YouTube about these files, because
they have no rights holders – they are in the public domain. The posting of
these files isn't "fair use". Fair use is a copyright infringement that is
lawful because it serves some allowed purpose. FedFlix's posting of public
domain files is not a copyright violation, so they can't be fair use.

Malamud's report documents these troubles in Kafkaesque detail. It's
frustrating reading. The American public paid to produce these videos, and
they own them, lock, stock and barrel. Multinational companies – the same
ones who cry poverty and demand far-reaching laws like the Stop Online
Piracy Act – have laid title to them, "homesteading the public domain", and
they are abusing Google's copyright peace offering to steal from the public.

And unfortunately, there is no organised lobby for the public domain to
demand the kind of stiff sanctions for Universal and co that other
copyright infringers face at their behest.

-- 
http://www.deepdishwavesofchange.org
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