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Fact-checking Zucker - October 3, 2007

O.K., not fact-checking, exactly. More like providing context for a couple of points he made in his speech this morning:

Today, I'm happy to report, the technology exists that recognizes copyrighted content that the copyright owner does not want uploaded, and block such content from the sites. The good news is that major sites like Microsoft's Soapbox and MySpace are using it today. It works. It will work even better in the future, and soon should become the industry standard.

It's true that Microsoft uses filtering technology on SoapBox to screen out unauthorized copyrighted material. But as Microsoft's top IP lawyer Thomas Rubin acknowledged to Media Wonk in August, the system is hardly ideal. Asked whether the technology Microsoft uses is capable of determining the nature of the use to which unauthorized content was being put he admitted that it cannot.

"That’s a very important question to which I don’t have the answer,” he said. “There could be cases where content is being used in a post but it’s not necessarily an infringement and we’ll have to figure out a way to deal with that. That’s the next big set of questions we have to address."

The technology works insofar as it keeps particular content off the site. But it doesn't work as an instrument of public policy, which, for time being at least, still tips its hat to fair use. And at least some legal expects maintain that  much of what goes on on user-generated sites "falls comfortably and clearly within the historical boundaries of fair use."

Another point:

The recent trilateral summit between the U.S., Canada and Mexico committed all three countries to a strategy for stronger IP protection. That Canadian government in particular has already begun to move. President Sarkozy of France has placed the fight against online piracy as one of his administration's top objectives, naming a blue ribbon commission last month to develop proposals on a rapid, two-month timetable.

Well, yes, President Sarkozy did do that. But the commission's charter doesn't stop at coming up with ways to fight piracy.

As Media Wonk noted last month, the Olivennes Commission, headed by the chairman of FNAC, France's largest retailer of music, DVDs, books and electronics is also charged with recommending new economic models for distributing music and movies online, including tackling such issues as DRM, interoperability, pricing and windows.

In other words, the digital distribution of video content in France is likely to evolve into a highly regulated business. That regulation is likely to include mandatory measures against piracy. But it's also very well involve the regulation of release windows, mandatory interoperability among DRM systems or even price regulation, none of which, presumably, will be so enthusiastically embraced by NBC Universal and other content providers.

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