Does YouTube legally need proactive takedown?

Question

YouTube needs to figure out what to do about people posting copyright material. The actual solution they arrived at, after some negotiation with the media companies, includes programs that scan uploaded content and proactively block material that matches a copyright database. (Inevitably these programs sometimes get it wrong, which is a problem.)

A friend of mine has claimed they are not actually required to do this. That US safe harbor law only requires them to take down copyright material after it has been brought to their attention. That they could stop using the proactive programs completely, and just replace them with a call center to take and act on copyright infringement notices.

I'm not sure about that; it seems to me that Napster is case law to the contrary, and anyway Google employs a bunch of expensive lawyers who wouldn't have advised them they needed a negotiated solution unless they really did.

Which of us is right? Could YouTube really revert to a purely reactive system, or could the media companies sue them if they didn't continue the proactive takedown measures?

Answer 1

Under the DMCA(United States Federal Law: Digital Millennium Copyright Act) and its Safe Harbor provisions, yes, Youtube is protected from copyright claims, provided they comply when they receive a notice. But....the DMCA that gives Youtube (and its parent company Google/Alphabet) this shield is US law, but Youtube does large amounts of business in other countries, making it liable in those countries, which don't necessarily have the same protections. Case-in-point, the EU.

Under some other nation's law, Youtube may be liable for infringement if they wait to be notified. Alternatively, part of the agreement that was being hammered out between Youtube and the content companies might very well be some sort of indemnity agreement, that protects Youtube from the content companies so long as they uphold their end of the agreement.

Additionally, even if Youtube isn't liable for the copyright infringement itself, since they serve ads on such videos, they could conceivably be sued under the theory of "unjust enrichment". (Similar to the logic that the EU is currently trying to get Google to pay their "link tax" for Google News on).

There are also non-legal considerations to consider:

• Benefit to Self: Youtube is now selling/renting copyrighted content such as movies and TV shows as well. By becoming a distributor, it's in their interest to not also allow free versions of what they are selling on their platform.

• Cost-to-implement: As Ron Beyer points out, a call center/email center/mail room to receive the DMCA notices would be an enormous cost. What's more, it's a continuous, recurring and likely-growing cost. Youtube/Google is also not short on software engineers. It's much cheaper to pull some devs off of their current project for a couple days, implement a solution and call it a day, with occasional maintenance, especially as they are going to be paying those engineers' salaries anyway.

• Business Relationships: Youtube/Google make most of their money from advertising (and off of user data, but that is often tied to advertising in the other direction). The content companies are often their customers. Angering your customers is generally not a good idea.

• Ultimate Desires/Future View:Youtube doesn't care about the lost content. They don't care about the fight. If the copyrighted material is blocked, their users are far more likely to find something else than leave the site; if the material is blocked before uploading, most users won't even realize it was ever there. As such, Youtube doesn't care if copyrighted content is blocked, as that is not their main market.

Answer 2

I know this is the law stack, but to backfill OP's understanding of the issue at large:

Youtube also has business reasons. Having worked in content management in a very similar web platform, I can tell you two of them right off the bat.

They don't want their platform flooded with crud. They want Youtube to be about original content like Blancolirio or PureLivingForLife. They do not want 10,000 web-rips of Outlander S05E09, and that's for two reasons:

• It clutters up the platform. Every time a piece of crud pops up in search results, it means a good result got evicted. And it's not like it bumps 1 good result from every query, some queries it does no harm and other queries it dominates search results to the point where you can't find anything good.

• It takes a lot of server space. When you have to rack 30 more servers to host those 10,000 copies of Outlander S05E09, it starts to become a business problem.

• When they swiftly police content, and demonetize/delete infringing content as fast as it's uploaded, then uploaders stop uploading. Making the costs of enforcement go down.

The second big reason is if they did push the "policing" job down to individual content providers, then it would be a practical necessity for hundreds of companies to scrape/download all of Youtube. The bandwidth requirement would be so large - they'd pretty much have to open a Culver City mirror of Youtube just for the scrapers - that again, it becomes a business problem.

• And that would also mean contending with an endless sea of DMCA takedowns. That is very high human-bandwidth because many IP owners are ridiculously over-aggressive about takedowns. They use hokey, cobbled together detection systems, and they simply do not care about false positives. And the resulting mess, when you have a hokey algorithm targeting valued content, makes a ton of work for staff.

• Whereas working with content providers and helping them screen infringing content is right down Google's alley; it's either something they're already good at, or something they want to be good at. And they use that to make their own products better.

What's more, the system causes content providers to voluntarily hand over copies of all their latest content (so Youtube's infringement detector knows what to look for). This has side effects for Google, aside from staff movie night: they can index the subtitle tracks, and with that media on file in the Youtube system, Google is well poised to offer a streaming service that could be monetized.