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Filtering content, before and after - October 18, 2007

A new battle line appears to be forming over filtering copyrighted video content from user-generated sites: the before vs. after line.

On Monday, Google unveiled its long-promised filtering plan for YouTube, which relies on identifying infringing content on the site and then removing or permitting it based on prearranged instructions from the copyright owner.

According to the "statement of principles" promulgated Thursday by a group of major media companies and a few tech allies, however, waiting for stuff to be posted before trying to filter it ain't gonna get it done.

Topping the list of principles, is "Implementation of state of the art filtering technology with the goal to eliminate infringing content on UGC services, including blocking infringing uploads before they are made available to the public," (emphasis in the original).

Meanwhile Viacom seems to be walking back a bit from its initial conciliatory comment regarding Google's proposed system.

On Monday, Viacom general counsel Mike Fricklas said, "We’re delighted that Google appears to be stepping up to its responsibility and ending the practice of profiting from infringement."

Since then, not so much. In court on Tuesday for a preliminary hearing in its $1 billion copyright infringement suit against Google, Viacom attorney Donald Verrilli characterized the plan as too little, too late.

"We'd have been a lot happier if they'd put this in place when they launched," Verrilli told the judge, according to a report on Mediapost.com. A Viacom spokesman added later, "The new technology obviously has no bearing on the past ... And we don't even know if the technology works yet."

The question of whether to filter before or after is inevitably fraught.

In their statement of principles, the media companies give at least a tip of the hat to the concept of fair use. "Cooperating to ensure that the technology is implemented in a manner that effectively balances legitimate interests, including fair use," the statement says.

Whether or not a use is "fair" under the copyright statute, however, is by design an after-the-fact determination. There's no way to know, while your blocking content from being uploaded, whether a court would ultimately find a particular use a legitimate fair use.

There's also this point, from Public Knowledge president Gigi Sohn: “It is a major contradiction to say attention should be paid to fair use and at the same time encourage the uploading of ‘authorized user-generated’ content. The beauty of fair use is that copyrighted material can be used in a way not authorized by the copyright holder."

The battle has begun.




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