Feature: Pirates of the digital millennium? - July 2007  

The YouTube phenomenon has captured the interest of the internet community, boasting more than 50m users worldwide, writes US-based consultant Steve Maloney. For some, YouTube and other social networking websites have become the primary source of entertainment and information. Besides the usual fare of dogs riding skateboards, stupid human stunts, and bad karaoke performances, users routinely visit the video-sharing site to view portions of popular programmes and news items rather than tune in to an entire broadcast. While convenient, this viewing practice is becoming problematic for content owners.

The gist of copyright holder complaints is that YouTube leverages the appeal of downloadable video content to generate visits to the YouTube website, creating, in essence, a video content free-for-all. Using copyrighted material as a lure, YouTube gains more ‘eyeball-share’ translating to increased banner adveritising revenue, all without gaining permission and avoiding providing compensation to rights holders for disseminating their content.
This has become a point of contention for sports rights holders, whose highlights are routinely uploaded for unfettered access by visitors to YouTube. In its early stages, such practices went seemingly unnoticed by sports leagues and federations. And, even if copyright violations were suspected, how could each transgression be addressed and resolved?
While YouTube and other file-sharing sites of their ilk appears the enabler of content pirates, the onus for identifying transgressions falls to the copyright holder. Only upon notification is the website obliged to take down the material. Granted, a simple notification of the offence is all that is required – to the chagrin of those who freely access the material, who feel that more proof of copyright ownership should be given. But, still, given the volume of content posted to YouTube, identifying instances of potential copyright infringement is a burdensome, time-consuming task. The viral nature of the YouTube file-sharing business model challenges the most diligent watchdogs.

History repeating

As rights holders begin to aggressively protect their assets, it appears that YouTube is headed into the same legal labyrynth as its music file-sharing service forebear, Napster in the late 1990s. Media conglomerate Viacom filed a $1bn copyright suit against Google in March (Google acquired YouTube last October for $1.65bn) because it says the site is illegally allowing copyrighted material to be posted. Within the past year, YouTube removed some 150,000 clips from its site after Viacom complained.
Others sports entities joining in the litigation parade include the Football Association Premier League Limited, the premier league of English soccer, and the Federation Francaise de Tennis and Ligue de Football Professionnel, France's top soccer league and its national tennis organisation.
Assigning liability when users post pirated videos is murky and, at this point, remains unresolved. YouTube and other video sharing sites claim protection from culpability under the Safe Harbor provision of the Digital Millennium Copyright Act (DCMA). The Safe Harbor provision limits US internet service providers from copyright infringement liability for simply transmitting information over the internet. Unlike their US counterparts, European-based ISPs are not afforded the protection of the safe harbor provisions offered by the DCMA.

Sinking the pirates

Rights holders hunger for software solutions that will effectively combat illegal uploading of their copyrighted content. To date, technologies developed to track video copyrights, such as tagging technologies and video watermarking, have proved ineffective. New software that claims to scan for and detect illegally posted rich media in any format wherever it is posted is hitting the market but needs to be battle-tested before being anointed as the long awaited remedy to the video piracy epidemic.
Some of the major players in this market include the UK’s Autonomy Corporation, Norway's Fast Search and Transfer, and, interestingly Google.

“If you can’t beat ‘em, join ‘em”

Some sports leagues have moved to get out in front of potential copyright infringement problems by partnering with YouTube. The National Hockey League established the first partnership of its kind for a US professional sports league when it joined with YouTube to form a content and advertising partnership for the 2006-07 season. Users can access video highlights of NHL regular season games, available within 24 hours of the original broadcast, in addition to other on and off ice footage.
YouTube now offers a ‘Claim Your Content’ programme which features a content identification architecture and reporting system allowing the league to identify and protect its copyrighted content. The league will have the option to remove the content from YouTube, or allow it to remain and share the revenue from the advertising placed adjacent to the content. Furthering the spirit of collaboration, the NHL also will have its own Brand Channel on YouTube that will allow fans to easily access content in one centralised place.
Shortly thereafter, the National Basketball Association followed the NHL’s lead, establishing a similar relationship with YouTube. The NBA has its own ‘channel’ on YouTube where users can find highlights and other content posted by the league. There is also a section for users to post their own content, generally of the personal variety, with players posting their own highlights from high school and pickup games.
Perhaps sensing the appeal of fans pasting together their own highlight packages from NBA footage, the NBA has added a ‘highlight mixer’ to its website where fans can use NBA content to generate their own highlight reels.
The National Football League (NFL) and Major League Baseball (MLB) have not gone the partnership route with YouTube as yet. Both leagues aggressively protect their copyrights in all forms – video, licensed merchandise, and other intellectual property – and will no doubt face stiff challenges in the days ahead. One fast approaching test will be when Barry Bonds of the San Francisco Giants breaks baseball’s most cherished record; Hank Aaron’s 755 career home runs. Video of that record-breaking event will receive an enormous number of hits from YouTube users.

Will the pirates be forced to walk the plank?

Clearly, the battle has been joined between copyright content holders and file sharing sites such as YouTube. Software monitoring solutions are appearing to combat copyright piracy issues but it is a cat-and-mouse game. The latest solution will only remain a deterrent until nefarious code-crackers develop even more clever and sinister ways to circumvent the newest security measures.
In the meantime, video scofflaws will continue to pirate content – copyrighted or not – at least until the courts render a final decision. A final thought on the Barry Bonds assault on major league baseball’s home run record: It will be a signature YouTube moment not only for the significance of the feat and the pirating activity that will ensue, but also for the irony that Bonds began his playing career with, of all teams, the Pirates of Pittsburgh! Stay tuned!

Steve Maloney is a technology writer and consultant based in Naples, Florida, USA. He can be reached at sfmaloney@comcast.net

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