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Looking for middle ground on filtering - November 1, 2007

One of the more striking features of the Electronic Frontier Foundation's six-point plan issued the other day for preserving fair use on user-generated video sites was the proposal's tacit, if grudging, acknowledgement that some level of filtering of content on YouTube and its ilk is a foregone conclusion.

"I actually think it is, unfortunately," the plan's principle author, Fred von Lohmann told Media Wonk. "Certainly for Google or Yahoo or Microsoft the business case for filtering is becoming pretty clear. If they want to get the content from the studios they're going to have to offer some kind of filtering; certainly Google and Microsoft are way ahead of anyone else on the technology so it becomes a barrier to entry for competition; and of course, they don't want to get sued. There's a sort of confluence of incentives that, I think, makes it inevitable that we'll have filtering. That's why it's so important to get the design of the filters right now."

In von Lohmann's preferred design, three conditions would have to be met before a filter blocks a piece of content--the plan's "three strikes" rule:

• the video track matches the video track of a copyrighted work submitted by the content owner;
• the audio track matches the audio track of a copyrighted work; and
• essentially all (90% or more) of the challenged content is comprised of a single copyrighted work.

As I've argued before, though, and as Von Lohmann acknowledges, the hard question is, what happens when those three conditions are met.

The "statement of principles" on filtering endorsed last month by most of the major studios makes clear that the content should be blocked before ever making it onto the site. If the blocking is disputed by the original poster, the content should stay down until the dispute is resolved.

The plan announced by Google last month takes a very different approach: Content goes onto the site first and is then examined for matches. If a match is found, it gets taken down. If a take-down is disputed, however, the content goes back up and the copyright owner is notified in case they want to send a formal DMCA take-down notice.

The EFF plan tries to strike a balance. If a match is found, the user is notified and given an opportunity to dispute the results. If the user chooses to dispute the match, the content owner is then notified, but the content could be quarantined for up to three business days to allow the content owner the opportunity to send a DMCA take-down notice.

"I actually think that 99 percent of matches will be undisputed, especially once people are told that filing a dispute means the content owner's lawyers will have to be notified," Von Lohmann said. "The real question is who should have the burden of getting off their duff and taking some action in the event of a match?"

Another tricky question involves the procedures for resolving disputes in the event a take-down is disputed. More on that in a future post.


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