Online Copyright Filtering

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Online Copyright Filtering

Prepared by Timothy Vollmer for the American Library Association Office for InformationTechnology Policy, February 2008.

What is online copyright filtering?

At the 2008 State of the Net panel on Internet copyright filters, Center for Democracyand Technology Senior Policy Counsel David Sohn defined online copyright filters astechnologies that an operator of a network, website or online service can use toautomatically identify infringing material and potentially block that content.1 The socialnetworking website MySpace, Microsofts user-generated video site Soapbox andvarious university computer networks are some examples where filtering technologieshave been implemented.

In October 2007 the popular video-sharing website YouTube enacted copyright filteringon its site. The filter compares user-submitted video content with a database of

copyrighted video content. This database consists of content voluntarily submitted byrights holders such as film studios and television producers.2 In January 2008 AT&Tannounced it was contemplating a copyright filtering system for its networks. AT&Tsproposed initiative is called network-level filtering and is administered by the Internetservice provider (ISP). Columbia law professor Tim Wu says this means that ISPs likeAT&T could soon start sniffing digital packets, looking for material that infringes onsomeones copyright.3

Authority, preemptive action and First Amendment considerations

Online copyright filtering technologies shift the legal determination of infringement fromcourts to ISPs. Wu warns that this could be a dangerous practice. He says, exactly

what counts as copyright infringement can be a tough question for a Supreme Courtjustice, let alone whatever program AT&T writes to detect copyright infringement.Inevitably, AT&T will block legitimate materialsand let some piracy through.4

YouTubes copyright filtering technology does not preemptively block content. However,a system devised by a copyright consortium including CBS, Disney, Fox, Microsoft,MySpace, NBC and Viacom agree to use technology to eliminate copyright-infringingcontent uploaded by Web users and to block any pirated material before it is publiclyaccessible.5 This type of prior restraint on speech can produce troubling First

1

David Sohn. Panel Discussion: Internet Copyright Filters: Finding the Balance. State of the Net 2008Conference. January 30, 2008. http://www.netcaucus.org/conference/2008/audio-copyright.shtml2David Kravets. Google Unveils YouTube Copyright Filter to Mixed Reviews. Wired blog network.

October 15, 2007. http://blog.wired.com/27bstroke6/2007/10/google-unveils-.html3Tim Wu. Has AT&T Lost Its Mind? Slate. January 16, 2008. http://www.slate.com/id/2182152 4

Ibid.5

Kenneth Li. Media Companies in Copyright Pact, Google Absent, Reuters News Service. October 18,2007.http://www.boston.com/business/technology/articles/2007/10/18/media_cos_to_disclose_copyright_pact_today_report/


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Amendment implications, especially if the content contains political speech. Universityof Iowa Communications Studies Professor Kembrew McLeod says that a shoot first,ask questions later" system can silence online artists and critics and create unfairhurdles to free speech.6

Gigi Sohn, director of the digital rights watchdog group Public Knowledge, thinks thatonline copyright filtering is a bad business practice and creates bad policy. Sohn says,fair use is the only thing that makes copyright work with the First Amendment.7Limiting speech, especially political speech is wrong and cannot be left up to automaticfiltering technologies. Furthermore, she claims that filters presume guilt over innocence,creating a culture of mistrust and invoking concerns about the privacy and security ofdigital information transmitted online.

Fair uses need to be protected

Fair use is a provision in United States copyright law that sets limits on the exclusiverights of creators. The fair use of a copyrighted workfor purposes such as criticism,

comment, news reporting, teaching, scholarship, or research, is not an infringement ofcopyright.8 Digital rights advocacy groups like the Electronic Frontier foundation (EFF)and Public Knowledge argue that copyright filters are not yet sophisticated enough to beable to take into consideration nuanced fair uses of copyrighted content.

YouTubes video fingerprinting technology is efficient because it can reliably capture allcopyrighted content that is indexed in its database. Unfortunately, while fingerprintingtechnology is able to flag copyrighted material, it can't make reliable judgments abouthow that content is used.9 Under this type of automatic system, fair uses can beinadvertently weeded out. "We don't think that any automated process will be able todetermine whether a consumer's fair use rights are being violated," said Gigi Sohn.10

The EFF claims that dummy filtering systems may not be able to discern whether a"match" results from a verbatim infringing copy, or whether it results from a shortexcerpt embedded in a longer piece that includes other content.11 YouTube allowsusers to contest videos blocked by its filter, but the EFF points out that many usersmay not be willing to put themselves in the crosshairs of movie studio lawyers to

6Electronic Frontier Foundation, Free Speech Battle Over Online Parody of Colbert Report, EFF.

March 2007. http://www.eff.org/press/releases/2007/03#0051767Gigi Sohn. Panel Discussion: Internet Copyright Filters: Finding the Balance. State of the Net 2008

Conference. January 30, 2008. http://www.netcaucus.org/conference/2008/audio-copyright.shtml817 U.S.C. 107

9Eric Bangeman, Consortiums user-generated content principles extend beyond fair use, Ars Technica.

October 18, 2007. http://arstechnica.com/news.ars/post/20071018-consortiums-user-generated-content-principles-extend-far-beyond-fair-use.html10

David Kravets. Google Unveils YouTube Copyright Filter to Mixed Reviews. Wired blog network.October 15, 2007. http://blog.wired.com/27bstroke6/2007/10/google-unveils-.html11

Fred Von Lohmann, YouTubes Copyright Filter: New Hurdle for Fair Use? Electronic FrontierFoundation. October 15, 2007. http://www.eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-fair-use


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determine whether a particular use is fair.12 This passive intimidation technique maylead to more users to censor the content they upload to sites like YouTube.

Dangerous for businesses and consumers

Today, ISPs are protected from copyright infringement liability under the Transitory

Digital Network Communications provision of the Digital Millennium Copyright Act.13 Tomaintain immunity, ISPs must transmit data "without selection of the material by theservice provider" and "without modification of its content."14 ISPs acting as dumb pipesare immune from liability for the content transmitted over the network. ISPs engaging inthe affirmative step of copyright filtering become targets in impending infringementlitigation. Therefore, another concern for end users should be the potential forincreasing service costs if ISPs get entangled in costly litigation.

Verizon is an ISP that has not pursued copyright filtering technologies for theirnetworks. Executive Vice President Tom Tauke claimed that copyright filtering wouldbe a bad business decision because it would place Verizon as being police on the

Internet, would be a likely invasion of privacy, and would open the door to requests fromothers to filter out other objectionable material, like indecency and online gambling.15

ALA perspective and policy recommendations

The American Library Association is a strong advocate for intellectual freedom, which isthe right of all peoples to seek and receive information from all points of view withoutrestriction.16 Its mission is to promote the highest quality library and informationservices and public access to information. In a comment to the FederalCommunications Commission concerning pending net neutrality regulation in February2008, the ALA reaffirmed this position:

Open access to the ever-increasing information on the Internet is critical tosupporting lifelong learning, maintaining a skilled workforce, enhancing economicdevelopment, and offering a venue for the open exchange of ideas, thoughts andopinions. Also important is ensuring that library users have access to the legalcontent of their choice and that such access is not blocked or inhibited by any thirdparty.17

12Fred Von Lohmann, YouTubes Copyright Filter: New Hurdle for Fair Use? Electronic Frontier

Foundation. October 15, 2007. http://www.eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-

fair-use1317 U.S.C. 512 (a)

14Tim Wu. Has AT&T Lost Its Mind? Slate. January 16, 2008. http://www.slate.com/id/2182152

15Gigi Sohn. Verizon: No thank you on copyright filtering. Public Knowledge. January 31, 2008.

http://www.publicknowledge.org/node/137516

American Library Association. What is Intellectual Freedom? American Library Association IntellectualFreedom and Censorship Q & A. http://www.ala.org/ala/oif/basics/intellectual.htm#ifpoint117

American Library Association. Comment on Petition for DeclaratoryRuling Regarding Internet Management Policies. American Library Association comments to the FederalCommunications Commission. February 2008.


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Today, public libraries throughout the country provide a critical community service byoffering free access to the Internet. For some, the public library is the only place to getonline. It is in the interest of libraries to provide unrestricted access to the wealth of richinformation available on the Internet. The ALA agrees with the principle that consumersare entitled to access the lawful Internet content of their choice.18 The vitality of voices

on the Internet is critical to the intellectual freedom that libraries around the world aretrying to protect and promote. Online copyright filtering technologies can inhibit thediscovery of knowledge prevent legitimate uses of legal content.

To support intellectual freedom, open access to information and other user rights, wesuggest further policy analysis surrounding online copyright filtering technologies.

Explore downstream implications: Courts have traditionally been the deciderof whether content is deemed an infringement. Further research should beconducted to determine whether ISP legal counsels should have the power todetermine whether a particular use of a piece of copyrighted content is a fair use.Also, more study should be done to examine the implications of ISPs

relinquishing immunity under the Transitory Digital Network Communicationsprovision of the DMCA. Does this potential liability extend to users and/or affectservice pricing frameworks?

Develop best practice for technology requirements: The EFF et al. Fair UsePrinciples for User Generated Video Content report recommends that filteringtechnologies should ensure a match of both the video and audio tracks beforethat material is automatically removed from a website. Furthermore, the reportsuggests that a ratio test might be implementedif nearly the entirety (e.g., 90%or more) of the challenged content is comprised of a single copyrighted work,that work should be flagged.19 This may provide a reasonable metric for

mechanical analysis and would drastically cut down on the videos improperlyidentified as infringing. If the match is only 10% of the entire video, theres agood indication that we might be talking about transformative content rather thanverbatim copying.20 We should support further research and development ofthese technologies, and require periodic quality assessment and filtering audits.

Prioritize human mediation: While technical tools may theoretically be wellsuited to match exact copies of copyrighted content, human review should trumptechnological review. Mia Garlick, Product Counsel for YouTube, admits that the

18Federal Communications Commission, In the Matters of Appropriate Framework for Broadband

Access to the Internet over Wireline Facilities. Federal Communications Commission Policy Statement.August 5, 2005. p. 3.19

Electronic Frontier Foundation, et al. Fair Use Principles for User Generated Video Content,Electronic Frontier Foundation, p. 1. http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen20

Fred Von Lohmann, YouTubes Copyright Filter: New Hurdle for Fair Use? Electronic FrontierFoundation. October 15, 2007. http://www.eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-fair-use


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copyright filtering technologies set up by YouTube are good at discerningwhether two pieces of content are the same but bad at making highly nuanceddecisions around fair use.21 Verbatim copies of pirated content will be easier toidentify and remove, but we need to apply the human touch when we addressnuanced cases, such as when users take copyrighted content and use it as

criticism or comment. A human-mediated interpretation of the materialssurrounding context is crucial in this process.

Formalize and normalize communication practices: Its important for ISPsand content providers to support clear communication channels between rightsholders and users. An efficient system for takedown and put back noticesshould be set in place. ISPs and content providers should be expected to resolveinfringement disputes in a timely fashion.

Conclusion

While we understand that piracy and copyright infringements have affected the contentindustry, we need to balance users rights with the rights of content owners. User rightsneed not be downplayed or reduced in order to support open access to information andmaintain opportunities to share creativity and culture.

There is much work to be done if online copyright filtering technologies are to be aviable option in fighting online piracy. First, we must explore the downstreamconsequences of copyright filters on end users. Second, we must push for improvedtechnologies so the filtering process can better distinguish between verbatim copyingand transformative uses. Third, we must incorporate human mediation in addition totechnological toolshumans should trump machines. Finally, we need to develop aneffective and efficient communication protocol to deal with disputes. This frameworkneeds to respects not only traditional content providers, but also a newly envisionedproducer/consumer.

The explosion of creative online outlets for information sharing, communication, andcommerce have revolutionized the way we live. As digital technologies become lessexpensive and easier to use, we see the line blurring between content producer andcontent consumer. We need to be able to take into account that in the new digitalenvironment, a new right to share will join the right to access. An evolvingparticipatory culture requires us to evaluate technologies like copyright filters under anew framework that reaffirms the rights of the producer/consumer.

For any of these things to take place, we must respect the users First Amendment andfair use rights in using copyrighted content, and must not allow any type of filter tosquash or limit these rights. We need to be able to support and protect a diversity ofexpression in the online environment.

21Mia Garlick. Panel Discussion: Internet Copyright Filters: Finding the Balance. State of the Net 2008

Conference. January 30, 2008. http://www.netcaucus.org/conference/2008/audio-copyright.shtml

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Online Copyright Filtering