There is a lot of other content on our global site that our users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office.

The real problem here is individuals and entities that abuse the DMCA takedown process. You and our other content uploaders can play a critical role in helping us to address this difficult problem...You can file counter-notifications. You can seek retractions of abusive takedown notices. You can hold abusive claimants publicly accountable for their actions by publicizing their actions...

(Photo by AP/Amy Sanchetta)

When Veoh allowed adult material on the site, it was all about customer service:

Veoh employees occasionally “spot check” videos after publication for compliance with Veoh’s policies and to ensure accuracy in the description and categorization of the content. For example, Veoh has, on occasion, edited the video description field. And, when adult content was still permitted on veoh.com, Veoh employees sometimes reviewed files to ensure proper ratings on any file containing sexually explicit material and reviewed sexually explicit files to determine whether they should be identified as “gay” or “straight” and added tags as needed.

Lloyd also made it clear that "reasonable" steps to keeping serial infringers off the site does not have to include blocking IP addresses, since those only identify the computer, not the user:

Here, Io has presented no evidence suggesting that tracking (or verifying) users’ actual identity or that blocking their IP addresses is a more effective reasonable means of implementation. There is no material dispute that, while IP addresses identify a particular computer connected to the Internet, they do not distinguish between users (e.g., family
members) who may share the same computer.

The plaintiffs also argued that Veoh, in transcoding video into Flash and pulling stills for thumbnail preview images, exempted it from the DMCA's safe harbor provisions. Again, the judge disagreed:

Essentially, the issue is whether Veoh is disqualified from Section 512(c)’s safe harbor because of automated functions that facilitate access to user-submitted content on its website. In the context of Veoh’s business, this appears to be a matter of first impression. Based on the record presented, this court concludes that Veoh is not disqualified from Section 512(c) safe harbor on this basis.

In the end, it's a big win for Veoh and for other online video sites — users can upload all the copyrighted ass-fucking they want, but as long as they follow standard DMCA procedure, they can rest assured that they won't be held liable.

Google's response said that the company goes above and beyond to help rightsholders police the site, to answer Viacom's allegation that the company does "little or nothing." "To the contrary, the availability on the YouTube site of a vast library of the copyrighted works of plaintiffs and others is the cornerstone of defendants' business plan," argued the Viacom counsel. Google's response also demands a trial by jury, moving further away from any possibility for a settlement.

YouTube has argued that under the DMCA, it's not responsible for policing user uploads beyond responding promptly to takedown requests, which has resulted in a cottage industry of contractors who provide flagging services for content providers. If Sony/BMG is flagging the videos, but asking for a link back to the official channel, that certainly represents an evolution in the practice — and presumably by cataloging unofficial uploads, it gives the content holder the ability to track "wildcat" views on their content across the YouTube site.

But YouTube has also worked with companies like AudibleMagic on tools that identify, or "fingerprint," video files, as well as developing some in-house. Linking to official pages could even be automated to some degree. Video that exists on the site, or has been uploaded, can be scanned and compared to those from official sources, or at least marked for human review.

What about the site's users? YouTube's terms of use prohibit users from uploading infringing content, and threatens account deletion if discovered. But that's essentially resulted in fans being punished for promoting material from bands and shows they like. By uploading it and tagging it, they even make it easier for YouTube's search engine to identify it for copyright holders

Why allow third-party videos to remain on the site, links or no links? Removing unofficial copies from search results and redirecting inbound links directly to the official source seems like a much more secure way to guarantee Sony BMG sees all the traffic from Modest Mouse fans. But that would make YouTube's attempts to appease big media companies with which it has signed deals more obvious.

PornoTube, like YouTube, purports to respect copyright but hides behind the provision of the Digital Millennium Copyright Act, which places the burden on copyright holders to report offending material. Vivid's attorney, Paul Cambria, thinks that is unfair: "Vivid should not have to take responsibility for policing PornoTube on a minute-by-minute basis to protect its rights." Viacom makes much the same argument, and won concessions from Google on that point recently.

But Vivid is also making the additional claim that PornoTube is violating the federal Child Protection and Obscenity Enforcement Act. Accusing PornoTube of violating the Child Protection Act is interesting because the requirements PornoTube is alleged to be violating were recently overturned. An appeals court ruled that requiring "secondary producers" of sexual content to record personal information for online video's so-called "performers" was onerous and unconstitutional. However, the judges expressed the view that the requirements could be legal if "secondary producer" was properly defined.

As a primary producer of porn, Vivid already complies with these "2257" requirements. Still, why would any porn operation seek greater regulation of its trade? Perhaps so. Vivid specializes in high-production-values, long-form porn. Anything that makes life harder for amateur competitors may serve the pros well. As for its customers? They just want things harder.

In the U.S., laws prevent Internet service providers from being held liable for their customers' actions. You can't sue Six Apart for a defamatory remark written on one of its TypePad blogs, and you can't sue YouTube for a video clip uploaded by a user. (Or so the legal theory goes, for now.) But in India, there are no such laws. In fact, India's Information Technology Act of 2000 explicitly makes services such website hosting companies, search engines, email services, and social networks liable for their users' content. There's no word yet on whether Viacom plans to move its headquarters to Mumbai.

When it announced the new tool today, Google emphasized that it was under no legal responsibility to do so.

In fact, since even before Viacom filed its $1 billion suit against Google for "massive copyright infringement" in March, Google has insisted the Digital Millenium Copyright Act (DMCA) places the responsibility of monitoring copyright content on the copyright owner.

"No matter how accurate the tools get, it is important to remember that no technology can tell legal from infringing material without the cooperation of the content owners themselves," an explanation on YouTube reads.

But the disclaimers haven't kept Viacom from gloating over what seems to be an early capitulation in what once looked to be a drawn-out legal battle.

"We're delighted that Google appears to be stepping up to its responsibility and ending the practice of profiting from infringement," said Mike Fricklas, Viacom's top lawyer.

In other words, take that, geekboys.

Truth is, I'm a little stunned at Google's reverse. I can still picture YouTube product counsel Glenn Brown comfortably reclined in a swivel chair, explaining just how impossible it would be to monitor YouTube uploads for copyrighted content. Harder even to identify than porn, Brown said.

What gives, Googlers? Fill us in on what happened.

To Whom it May Concern:

This is in regards to a DMCA complaint that was issued to you as the webmaster, OSP, or administrator, in reference to the following URL(s):

http://www.valleywag.com/assets/resources/2006/11/fox-news-gothic.jpg
At this time, I would like to withdraw the DMCA complaint, strictly as pertains to the above URL(s), which regard a 2005 appearance on the Fox News Channel.

I request that the content therefore be restored, and the DMCA complaint withdrawn, and would like to at this time apologize for any extra work or problems that this complaint has caused.

I certify that the above information is true and correct to the best of my knowledge, information, and belief, and may be reached via telephone at [redacted], or via postal mail at [redacted]. E-mail is [redacted].

Thank you,

Michael Crook