August 25, 2016

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Viacom, YouTube, and Privacy

Yesterday’s top tech policy story was the copyright lawsuits filed by Viacom, the parent company of Comedy Central, MTV, and Paramount Pictures, against YouTube and its owner Google. Viacom’s complaint accuses YouTube of direct, contributory, and vicarious copyright infringement, and inducing infringement. The complaint tries to paint YouTube as a descendant of Napster and Grokster.

Viacom argues generally that YouTube should have done more to help it detect and stop infringement. Interestingly, Viacom points to the privacy features of YouTube as part of the problem, in paragraph 43 of the complaint:

In addition, YouTube is deliberately interfering with copyright owners’ ability to find infringing videos even after they are added to YouTube’s library. YouTube offers a feature that allows users to designate “friends” who are the only persons allowed to see videos they upload, preventing copyright owners from finding infringing videos with this limitation…. Thus, Plaintiffs cannot necessarily find all infringing videos to protect their rights through searching, even though that is the only avenue YouTube makes available to copyright owners. Moreover, YouTube still makes the hidden infringing videos available for viewing through YouTube features like the embed, share, and friends functions. For example, many users are sharing full-length copies of copyrighted works and stating plainly in the description “Add me as a friend to watch.”

Users have many good reasons to want to limit access to noninfringing uploaded videos, for example to make home movies available to family members but not to the general public. It would be a shame, and YouTube would be much less useful, if there were no way to limit access. Equivalently, if any copyright owner could override the limits, there would be no privacy anymore – remember that we’re all copyright owners.

Is Viacom really arguing that YouTube shouldn’t let people limit access to uploaded material? Viacom doesn’t say this directly, though it is one plausible reading of their argument. Another reading is that they think YouTube should have an extra obligation to police and/or filter material that isn’t viewable by the public.

Either way, it’s troubling to see YouTube’s privacy features used to attack the site’s legality, when we know those features have plenty of uses other than hiding infringement. Will future entrepreneurs shy away from providing private communication, out of fear that it will be used to brand them as infringers? If the courts aren’t careful, that will be one effect of Viacom’s suit.

Comments

  1. “The complaint tries to paint YouTube as a descendant of Napster and Grokster”

    Well, in a sense, that’s true. Or at least, one can make a very consistent argument that the YouTube founders studied the lessons of those cases very, very, carefully.

    “it’s troubling to see YouTube’s privacy features used to attack the site’s legality, when we know those features have plenty of uses …”

    There’s certainly a logical problem here, but the poisoning of the well happened way before this case, back in the _Napster_ and _Aimster_ cases.

    Quote from _Napster_: “It is apparent from the record that Napster has knowledge, both actual and constructive, The district court found actual knowledge because: (1) a document authored by Napster co-founder Sean Parker mentioned “the need to remain ignorant of users’ real names and IP addresses ‘since they are exchanging pirated music'”; ”

    This was also extensively discussed in the _Aimster_ case, I’ll skip the excerpt because it’s long.

    I know the topic is geek-catnip, but it’s been around a few times now, somewhat cynically too.

  2. Seth,

    Aimster is certainly on point. The first draft of this post had a paragraph about Aimster, but I took it out to keep the post short.

    The courts ruled that Aimster’s use of encryption was designed to shield infringers. Aimster lost this point more or less by default, by failing to make a coherent argument that the encryption benefited noninfringing users. Had Aimster made such an argument, and had the evidence about their actual intent in designing that feature supported it, things might have turned out differently. Given that Aimster didn’t really fight this point, I don’t think we should read too much into the fact that they lost it.

  3. Well, the judge seemed pretty clear on the reasoning:

    “Our point is only that a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used. We also do not buy Aimster’s argument that since the Supreme Court distinguished, in the long passage from the Sony opinion that we quoted earlier, between actual and potential noninfringing uses, all Aimster has to show in order to escape liability for contributory infringement is that its file-sharing system could be used in noninfringing ways, which obviously it could be. Were that the law, the seller of a product or service used solely to facilitate copyright infringement, though it was capable in principle of noninfringing uses, would be immune from liability for contributory infringement. That would be an extreme result, and one not envisaged by the Sony majority.”

    But you’re right that Aimster could have come up with a better argument – one reason I say the YouTube people seemed to have paid attention.

    In practice, it’s proven surprisingly easy so far to tell what’s a sham argument, even though there’s an abstract problem. My explanation for this is the joke that the difference between the systems built for copyright infringement, and the systems built for civil-liberties, is that there’s a ton of money in the former, and no money in the latter.

  4. This isn’t all that new. The MPAA killed a California anti-pretexting bill because it would supposedly keep them from combating piracy.

  5. If I were to e-mail someone a file containing copyrighted material, only people on the recipient list have access to that file, so Viacom’s argument would render every e-mail provider potentially liable.

    But besides that, doesn’t Google’s immunity in this case stem from its compliance with DMCA takedown requests (and other details) per 17 USC 512a-c? The law specifically proscribes Google’s responsibilities in this case, and 512(a)(3) provides the specific condition that the recipients of the content can’t be selected by the service provider except automatically per user request, which would seem to indicate that allowing users to limit the scope of the recipients was specifically contemplated by Congress when enacting that section.

    The only question I can see (note that I’m a nerd, not a lawyer) is whether serving ads alongside violative content counts as a “direct financial benefit” rather than an indirect one. Also note that if Google can be held non-immune in this case, then countless free web hosting providers (Angelfire, Geocities, etc.) that serve ads alongside users’ webpages could be held liable, rendering that business model useless as well.

  6. The arguments that Viacom is using against YouTube nonwithstanding, the whole
    business model of Google features including Google Books and now YouTube
    seems to be to present copyrighted works of others for profit without asking
    the copyright holders’ permission first. I don’t believe that there’s an “opt out”
    provision in copyright law, and it troubles me that copyright holders are the ones
    burdened with monitoring such a site for infringement

    On the other hand, it seems like Google’s business model is moving us towards
    having to reconcile the benefits offered to service providers vs. copyright law.

  7. One of the things that struck me first about this is the way that using the privacy control as evidence of contributory infringement writes out of existence ways in which sharing copyrighted-by-others material among friends or associates may be a perfectly defensible practice.

    (Of course, as someone who makes a living producing copyrighted material I have fairly strong qualms about Google’s business model and the Hobson’s choice they offer authors who want fair compensation when other people make profits from their work. It may be instructive to think about why the compulsory-licensing schemes that cover parts of the music industry haven’t been extended anywhere else, even though it would appear pretty attractive for that to happen.)

  8. Ed’s point is very deep – that the ability of the copyright owner to try to police the website is in direct opposition to site users’ privacy rights.

    If people in general REALLY value privacy — and this is a debatable point today — then this is a good place to dig in and say that our governments are trying too hard to support a business model at the expense of privacy rights.

    You can argue that the right to provicy is an essential right. You cannot really argue that copyright protection, which has not existed in most of civialized history, and only in a handful of countries until very recently, is an essential right.
    – tobias d. robison

  9. Some instances of copyright violation might be identified without compromising the privacy of users if there existed a good video fingerprinting technology. Instead of screening millions of videos manually (a pretty tough and ongoing burden), Viacom could compile a list of fingerprints of all of its copyrighted video material. Providers like YouTube could then check the fingerprints of newly uploaded videos against their catalog of fingerprints referring to copyrighted videos.
    This wouldn’t catch all copyrighted material — the amount caught would really depend on the implementation of the fingerprinting mechanism, and any mechanism would almost certainly have ways to get around it for those willing to put forth enough effort and/or distort the video enough — but it could prevent the most straightforward rips without compromising user privacy.
    This kind of technology seems to have progressed a good deal in the music domain — it was discovered that the concert pianist Joyce Hatto was a fraud when a listener played one of her CDs with Apple’s iTunes software and it identified it as a recording by another pianist — but as far as I know, fingerprinting for video is much less accurate and much more computationally expensive at this time. It is also a more challenging problem in the video domain since video clips are often pirated whereas with music, the common case is to pirate one complete song at a time.
    C

  10. avatar Stewart M. Clamen says:

    Google Books is misunderstood. Google scans (and OCR’s) the entire copyrighted work to build its indexes, but the user interface only allows readers access to a few lines around the matching text (in the case where Google doesn’t have permission to display more).

  11. I am pondering whether a group of “Concerned Internet Users” (could be coordinated by the EFF) should file a “friends of the court” brief on the topic of privacy when the lawsuit really gets underway.

    The argument could be something like: “Some people use YouTube to share family and holiday videos with family and friends abroad. There are several reasons like privacy and protection of children to restrict distribution of these videos to family and trusted friends. As copyright owners the makers of the video have those rights. We appreciate that YouTube gives us distribution control over our own works, this aspect makes YouTube a valuable service for us.”

    In my opinion “privacy is the ability to restrict distribution of information regarding your person”. Your personal friends get to know your favourite drinks, while your boss has your SSN for the taxman.

  12. This privacy issue does raise some points I haven’t considered before. For example if someone sends me a xeroxed copy of an article, or writes a email copying in stuff from a website. Presumably the issue here is more about the profiting from it rather than the breach of copyright.

    What happens if this email goes to a Gmail address and comes with some advertising on it?

    Can I write to a friend, including stuff that I don’t own the copyright to? What is private? Should an author out there be permitted to open every letter going through the mail just in case someone has quoted too much of their work? Should every person who has ever published anything be allowed to look at every letter just in case?

    How is this different from inspection of a private group on YouTube.

  13. There’s a new kid on the block that solves all the problems.
    Jalipo.com
    Look out for it

  14. Well, the judge seemed pretty clear on the reasoning:

    “Our point is only that a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used. We also do not buy Aimster’s argument that since the Supreme Court distinguished, in the long passage from the Sony opinion that we quoted earlier, between actual and potential noninfringing uses, all Aimster has to show in order to escape liability for contributory infringement is that its file-sharing system could be used in noninfringing ways, which obviously it could be. Were that the law, the seller of a product or service used solely to facilitate copyright infringement, though it was capable in principle of noninfringing uses, would be immune from liability for contributory infringement. That would be an extreme result, and one not envisaged by the Sony majority.”

    But you’re right that Aimster could have come up with a better argument – one reason I say the YouTube people seemed to have paid attention.

    In practice, it’s proven surprisingly easy so far to tell what’s a sham argument, even though there’s an abstract problem. My explanation for this is the joke that the difference between the systems built for copyright infringement, and the systems built for civil-liberties, is that there’s a ton of money in the former, and no money in the latter.

  15. This isn’t all that new. The MPAA killed a California anti-pretexting bill because it would supposedly keep them from combating piracy.

  16. I think it’s especially disturbing that the complaint implies that YouTube has installed these privacy measures for the sole, or main, purpose of interfering with the ability of copyright owners to find copyright infringers..when it seems pretty obvious to many of us who use MySpace, Friendster, or any other community site that these privacy measures serve a greater purpose.

    On another note: the complaint also discusses the legitimate, licensed channels for watching video clips of material copyrighted by the plaintiffs. It discusses the streaming video clips available on their own websites, and the advertising revenue and other benefits they gain from people visiting their sites to watch the clips.
    When I read that, my reaction was…Wow, good for you. But didn’t you get the idea from YouTube in the first place?

    Correct me if I’m wrong, but didn’t YouTube blaze the trail in this market? Didn’t YouTube basically create this culture of consumers getting to see what they want, when they want it? If the companies are benefitting from people visiting their websites – as they say claim to be doing in the complaint – then they should thank YouTube for having the creativity and innovation they lack to create this market.

  17. more tolerance, people!

  18. Should every person who has ever published anything be allowed to look at every letter just in case?

  19. Hello, the MPAA killed a California anti-pretexting bill because it would supposedly keep them from combating piracy.