Tuesday, October 23, 2007

Seeking Common Ground for Copyright: Will Publisher's Principles Avoid Legal Action?

As Google tries to trumpet its new YouTube system for identifying copyrighted video materials you'd think that they would be getting some slaps on the back from commercial video producers. Instead Google's YouTube initiative, which was eagerly awaited only a few months ago, constitutes in the minds of many media companies only a partial and proprietary solution to the question of how to manage copyrighted materials in social media outlets. Google itself recognizes this when it notes in its description of its new service:
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. This means that copyright holders who want to use and help us refine our Video ID system will be providing the necessary information to help us recognize their work. We aim to make that process as convenient as possible.
So how best to handle managing copyrighted materials across social media environments? Several media and technology companies have joined together to define "User-Generated Content Principles," an online document that provides a general framework of requirements for managing copyrighted materials in social media services. Although not a binding legal document the language of UGCP is clearly legally oriented, with the typical onerous one-sided expectations that any corporate legal team is likely to insert in terms of unconditional legal surrender. Moreover, if one tries to abide by this framework a social media service provider must consider the following claim in the UGCP:
Copyright Owners should not assert that adherence to these Principles, including efforts by UGC Services to locate or remove infringing content as provided by these Principles, or to replace content following receipt of an effective counter notification as provided in the Copyright Act, support disqualification from any limitation on direct or indirect liability relating to material online under the Copyright Act or substantively similar statutes of any applicable jurisdiction outside the United States.
In other words, even if you do everything that we ask you to, don't expect that copyright holders still won't give you a hard time. There's comfort for you.

The main rub in the UGCP document is that while it is broad enough to provide a general requirements framework to develop more universal copyright management services it does nothing to ensure that copyright holders will provide any significant standardization of copyright identification technology, filtering processes and reference materials referenced in the document. In essence it suggests to social media sites that they must be ready to institute whatever technologies that any number of publishers find to be acceptable to their needs. Given that Microsoft is one of the technology companies that has signed on to the UGCP one can imagine that there may be some proprietary interests in play on this front.

The UCGP document does cite some good best practices for managing copyrighted content in a social media environment, but it's far from clear that it brings the content industry any closer to a significant agreement on how copyright should be managed in online materials. Even as Google gets slammed by some for rushing to get some sort of filtering and identification system in place on a rapid basis we are no closer to copyright holders agreeing to a common framework for them taking on some reasonable portion of the burden of implementing tools that will make the universal identification, filtering and referencing of copyrighted materials simple and reasonable to manage.

To some degree the rise of digital watermarking and identification schemes that eliminate onerous DRM packaging are pointing towards a more workable solution. Being able to allow publishers to identify their content using reports from social media sites and their own scanning tools can help them to determine when the reuse of copyrighted materials is worth pursuing as a legal matter or as a business development opportunity. But until these technologies are implemented more broadly it's unrealistic to expect social media outlets to respond aggressively with their own solutions if the see Google getting slammed by UGCP members for its efforts. We seem to be creeping towards open solutions that will enable publishers to get around the copyright conundrum without huge proprietary investments but don't expect the pace to pick up until some publishers have proven how to do it cheap, simply and in a way that won't be irksome to the creative talents that are driving online content value.
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