Viacom vs. YouTube: Unasked Questions

This weekend I finally joined the YouTube crowd, and while my video was uploading I found myself thinking about Viacom. Partly it was because of their recent lawsuit against YouTube; partly it was because of a press release a friend of mine forwarded to me on the same day as the lawsuit. In it, digital video company MotionDSP announced Ikena Copyright, a program that uses "video intelligence algorithms" to identify a video clip's "video signature" and match it to an existing video database, regardless of the editing tricks the clip's author might use. The pitch is predictable: a company like YouTube can use Ikena Copyright in conjunction with such a database to identify copyrighted video that has been uploaded to the site. Or, companies like Viacom can use it to efficiently identify infringing clips. But there are four very important things that remain unexplored.

First, assuming that YouTube and other such sites do go with such video-signature systems, is the system really scalable enough to handle the entire output of Hollywood, Bollywood, and the world's other major cinematic powers? Will smaller producers and individuals be able to enter their works into the database and seek similar protection? And if so, how manageable a system can this be if, as some say, there are 100,000 uploads to YouTube alone every day?

Second, everyone seems to be ignoring the fact that "copyrighted" and "infringing" are two different things. People can get permission to use copyrighted video segments in their own works. Furthermore, fair use in American copyright law and fair dealing in other countries' copyright laws do allow certain exceptions for using copyrighted material without seeking permission.

Third, copyright terms vary from country to country. For that matter, so do the exceptions I mentioned above. What happens if, say, I use a clip that's public domain in Canada, but not in the US? Can an American company's takedown notice affect work that's perfectly legal in the country of origin, or vice versa? Should it?

All of these are things that can lead to false positives?incorrectly tagging a video as infringing, when in fact it's perfectly legit. It's easy enough to make this kind of error when people are turning up what appear to be violations. As a recent Slashdot entry on DMCA abuse points out, Viacom is aware that a handful of the clips they targeted were, in fact, perfectly fine. (Are there other clips they aren't aware of? And doesn't that make you wonder how, exactly, they identified all 100,000 of them?) I imagine that an automated system will only make things worse.

This leads me to my fourth point, which makes it all the more surprising that Viacom is charging in like this. In an article in Hollywood Reporter, Esq., Electronic Frontier Foundation lawyer Fred von Lohmann mentioned an interesting little fact: that if a content owner uses a takedown notice to remove content that doesn't infringe on their intellectual property, they can be sued by YouTube or the user who had their clip pulled. The more ill will Viacom and other media companies generate, the more likely that people who have been stung will band together and use that aspect of the law to fight back. Do they really want it to come to that?

Now that I think of it, maybe it's no surprise why these questions aren't being asked.