Gartner Research Blog for the Media Industry
Judge Orders Copyright Holders to Think First, Subpoena Later
Posted By: Michael McGuire, Research VP
A federal judge ruled that copyright holders must consider whether pieces of content posted by individuals on sites such as YouTube are examples of "fair use" before demanding the content be pulled from the Web.
While the ruling isn't a sweeping endorsement of all forms of consumer creativity involving the use of copyrighted works, it's a substantial check on rights holders' carpet-bombing of sites with takedown notices. For that reason, the judge's ruling is significant.
Over the course of the past 10 years, copyright holders have deployed technology (DRM) and law (the Digital Millennium Copyright Act, the Recording Industry Association of America's flood of lawsuits against alleged file traders) to protect their ability to control the flow of their content online. As YouTube and other UGC sites grew in popularity, rights holders were filing numerous takedown notices at any sign of copyrighted material.
There are a couple of important products of this decision. First, it underscores the imperative for rights holders to get a grip on reality and acknowledge the way the online media ecosystem is developing. The Lenz case for which the ruling was issued was a particularly egregious example of overreaching by the rights holders. The content involved a Prince song that was playing in the background - it wasn't really a video soundtrack - while a mother filmed her toddler dancing along to the song. How is that harmful to Universal's attempt to make money off the Prince song? (Besides getting a grip, I would also suggest that Universal Music, the plaintiff in the case, hire some different PR executives. I believe an astute PR pro would hear "mother" and "adorable child" and very likely caution against pursuing the case.) The video in question was ultimately reposted.
The second important product of the ruling is that it shows how little progress has been made recently in the deployment of technologies that can automate the process of checking for copyright violations, the filtering technologies that Google claimed would be developed to identify copyrighted material. While we might hail the judge's ruling, and we do, rights holders need to start serious collaboration with technology providers to create a set of licensing and content-tagging schemes that free consumers - who play by the rules - from concerns about being sued while also giving rights holders methods to track their content as it's flung around the Internet. Google and YouTube haven't really said whether the detection system they were going to have in place by the end of last year is actually in place.
At the moment, most sites such as YouTube claim to have some form of algorithmic filtering but also depend on humans to review content. Rights holders have to pay folks to scan these sites continuously looking for their material. (I guess that's a reasonable use of resources.) And the rush to do all this scanning for the usurpation of copyrighted material results in collateral damage, like this case.
This struggle between rights holders, online UGC providers and all other portals that enable consumers to upload their creations (and what they happen to collect online in the form of video and audio files) is never going to end. And it really shouldn't. However, what needs to happen is that an equilibrium needs to form that balances the needs and wants of consumers who want to create and put their stamp on the culture, no matter how silly it might seem to others, and the needs of rights holders and artists to be compensated or at least have some say in how their works are used by others.
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