October 15, 2007 | By Fred von Lohmann

YouTube's Copyright Filter: New Hurdle for Fair Use?

Google has announced its long-awaited copyright filtering (or "video identification," if you prefer) mechanism for YouTube. Based on initial reports and discussions with Google, the system will be good news for copyright owners and bad news for people who post unauthorized verbatim copies of popular copyrighted material. But what about the fair users, who have made YouTube the platform of choice for remix culture? Unfortunately, it looks like YouTube's solution may put them in jeopardy.

The problem is that YouTube's video identification technology can't discern whether a "match" results from a verbatim infringing copy, or whether it results from a short excerpt embedded in a longer piece that includes other content. Recall Michelle Malkin's commentary on rapper Akon, which was erroneously taken down by Universal Music Group. In that case, two excerpts from Akon music videos were embedded into a longer commentary about the rap star.

Unfortunately, it appears that the video identification system announced by YouTube would have blocked Ms. Malkin's video, based on the "match" generated by the music video excerpts.

YouTube does allow users to "contest" blocking at the hands of the new video identification mechanism. At that point, the clip will be referred to the rightsholder for manual review. While this may rescue some fair users (I assume Malkin would have contested a block on her video, as would MoveOn for its "Stop the Falsiness" parody of The Colbert Report, the victim of a bogus takedown notice from Viacom), many may not be willing to put themselves in the crosshairs of movie studio lawyers.

So what can YouTube do to protect fair users? Here are two things:

  1. Add audio track identification and insist on a video and audio match before any automated blocking of content. YouTube is already using Audible Magic's audio fingerprinting tool to identify the audio used in uploaded videos. If the audio track doesn't match the video track, that's a good indication that we're talking about The Vader Sessions, rather than an infringing upload of Star Wars.
  2. Add a test to determine what ratio of the uploaded video is comprised of content claimed by a rightsholder. A test like this would have rescued both Michelle Malkin's Akon commentary and MoveOn's Falsiness parody. After all, if the "match" is only 10% of the entire video, that's a good indication that we're talking about transformative content, rather than verbatim copying.

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