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Online Copyright Filtering

Prepared by Timothy Vollmer for the American Library Association Office for Information
Technology Policy, February 2008.
What is online copyright filtering?
At the 2008 “State of the Net” panel on Internet copyright filters, Center for Democracy
and Technology Senior Policy Counsel David Sohn defined online copyright filters as
“technologies that an operator of a network, website or online service can use to
automatically identify infringing material and potentially block that content.”1 The social
networking website MySpace, Microsoft’s user-generated video site Soapbox and
various university computer networks are some examples where filtering technologies
have been implemented.
In October 2007 the popular video-sharing website YouTube enacted copyright filtering
on its site. The filter compares user-submitted video content with a database of
copyrighted video content. This database consists of content voluntarily submitted by
rights holders such as film studios and television producers.2 In January 2008 AT&T
announced it was contemplating a copyright filtering system for its networks. AT&T’s
proposed initiative is called network-level filtering and is administered by the Internet
service provider (ISP). Columbia law professor Tim Wu says this means that ISPs like
AT&T “could soon start sniffing digital packets, looking for material that infringes on
someone’s copyright.”3
Authority, preemptive action and First Amendment considerations
Online copyright filtering technologies shift the legal determination of infringement from
courts 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 Court
justice, let alone whatever program AT&T writes to detect copyright infringement.
Inevitably, AT&T will block legitimate materials…and let some piracy through.4
YouTube’s 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-infringing
content uploaded by Web users and to block any pirated material before it is publicly
accessible.”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 2008
Conference. January 30, 2008. http://www.netcaucus.org/conference/2008/audio-copyright.shtml
2
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-.html

3
Tim 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_t
oday_report/
Amendment implications, especially if the content contains political speech. University
of Iowa Communications Studies Professor Kembrew McLeod says that a “shoot first,
ask questions later" system can silence online artists and critics and create unfair
hurdles to free speech.6
Gigi Sohn, director of the digital rights watchdog group Public Knowledge, thinks that
online 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.”7
Limiting speech, especially political speech is wrong and cannot be left up to automatic
filtering technologies. Furthermore, she claims that filters presume guilt over innocence,
creating a culture of mistrust and invoking concerns about the privacy and security of
digital information transmitted online.
Fair uses need to be protected
Fair use is a provision in United States copyright law that sets limits on the exclusive
rights of creators. “The fair use of a copyrighted work…for purposes such as criticism,
comment, news reporting, teaching, scholarship, or research, is not an infringement of
copyright.”8 Digital rights advocacy groups like the Electronic Frontier foundation (EFF)
and Public Knowledge argue that copyright filters are not yet sophisticated enough to be
able to take into consideration nuanced fair uses of copyrighted content.
YouTube’s video fingerprinting technology is efficient because it can reliably capture all
copyrighted content that is indexed in its database. Unfortunately, while fingerprinting
technology is able to flag copyrighted material, it can't make reliable judgments about
how that content is used.9 Under this type of automatic system, fair uses can be
inadvertently weeded out. "We don't think that any automated process will be able to
determine 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 short
excerpt embedded in a longer piece that includes other content.11 YouTube allows
users to contest videos blocked by its filter, but the EFF points out that “many users
may not be willing to put themselves in the crosshairs of movie studio lawyers” to


























































6
Electronic Frontier Foundation, “Free Speech Battle Over Online Parody of ‘Colbert Report,’” EFF.
March 2007. http://www.eff.org/press/releases/2007/03#005176
7
Gigi 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.shtml

8
17 U.S.C. § 107
9
Eric Bangeman, “Consortium’s 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.html
10
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-.html
11
Fred Von Lohmann, “YouTube’s 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-use
determine whether a particular use is fair.12 This passive intimidation technique may
lead 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 To
maintain immunity, ISPs must transmit data "without selection of the material by the
service provider" and "without modification of its content."14 ISPs acting as “dumb pipes”
are immune from liability for the content transmitted over the network. ISPs engaging in
the affirmative step of copyright filtering become targets in impending infringement
litigation. Therefore, another concern for end users should be the potential for
increasing service costs if ISPs get entangled in costly litigation.
Verizon is an ISP that has not pursued copyright filtering technologies for their
networks. Executive Vice President Tom Tauke claimed that copyright filtering would
“be 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 from
others 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 is
the “right of all peoples to seek and receive information from all points of view without
restriction.”16 Its mission is to promote the highest quality library and information
services and public access to information. In a comment to the Federal
Communications Commission concerning pending net neutrality regulation in February
2008, the ALA reaffirmed this position:

Open access to the ever-increasing information on the Internet is critical to


supporting lifelong learning, maintaining a skilled workforce, enhancing economic
development, and offering a venue for the open exchange of ideas, thoughts and
opinions. Also important is ensuring that library users have access to the legal
content of their choice and that such access is not blocked or inhibited by any third
party.17


























































12
Fred Von Lohmann, “YouTube’s 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-use
13
17 U.S.C. § 512 (a)
14
Tim Wu. “Has AT&T Lost Its Mind?” Slate. January 16, 2008. http://www.slate.com/id/2182152
15
Gigi Sohn. “Verizon: No thank you on copyright filtering.” Public Knowledge. January 31, 2008.
http://www.publicknowledge.org/node/1375
16
American Library Association. “What is Intellectual Freedom?” American Library Association Intellectual
Freedom and Censorship Q & A. http://www.ala.org/ala/oif/basics/intellectual.htm#ifpoint1
17
American Library Association. “Comment on Petition for Declaratory
Ruling Regarding Internet Management Policies.” American Library Association comments to the Federal
Communications Commission. February 2008.
Today, public libraries throughout the country provide a critical community service by
offering free access to the Internet. For some, the public library is the only place to get
online. It is in the interest of libraries to provide unrestricted access to the wealth of rich
information available on the Internet. The ALA agrees with the principle that “consumers
are 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 are
trying to protect and promote. Online copyright filtering technologies can inhibit the
discovery of knowledge prevent legitimate uses of legal content.

To support intellectual freedom, open access to information and other user rights, we
suggest further policy analysis surrounding online copyright filtering technologies.
• Explore downstream implications: Courts have traditionally been the decider
of whether content is deemed an infringement. Further research should be
conducted to determine whether ISP legal counsels should have the power to
determine 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 Communications
provision of the DMCA. Does this potential liability extend to users and/or affect
service pricing frameworks?

• Develop best practice for technology requirements: The EFF et al. “Fair Use
Principles for User Generated Video Content” report recommends that filtering
technologies should ensure a match of both the video and audio tracks before
that material is automatically removed from a website. Furthermore, the report
suggests that a ratio test might be implemented—if 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 improperly
identified as infringing. If the ‘match’ is only 10% of the entire video, there’s a
good indication that we might be talking about transformative content rather than
verbatim copying.20 We should support further research and development of
these technologies, and require periodic quality assessment and filtering audits.

• Prioritize human mediation: While technical tools may theoretically be well


suited to match exact copies of copyrighted content, human review should trump
technological review. Mia Garlick, Product Counsel for YouTube, admits that the


























































18
Federal 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-
usergen
20
Fred Von Lohmann, “YouTube’s 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-use
copyright filtering technologies set up by YouTube are good at discerning
whether two pieces of content are the same but bad at making highly nuanced
decisions around fair use.21 Verbatim copies of pirated content will be easier to
identify and remove, but we need to apply the “human touch” when we address
nuanced cases, such as when users take copyrighted content and use it as
criticism or comment. A human-mediated interpretation of the material’s
surrounding context is crucial in this process.

• Formalize and normalize communication practices: It’s important for ISPs


and content providers to support clear communication channels between rights
holders and users. An efficient system for takedown and “put back” notices
should be set in place. ISPs and content providers should be expected to resolve
infringement disputes in a timely fashion.

Conclusion

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

There is much work to be done if online copyright filtering technologies are to be a


viable option in fighting online piracy. First, we must explore the downstream
consequences of copyright filters on end users. Second, we must push for improved
technologies so the filtering process can better distinguish between verbatim copying
and transformative uses. Third, we must incorporate human mediation in addition to
technological tools—humans should trump machines. Finally, we need to develop an
effective and efficient communication protocol to deal with disputes. This framework
needs to respects not only traditional content providers, but also a newly envisioned
“producer/consumer.”

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

For any of these things to take place, we must respect the user’s First Amendment and
fair use rights in using copyrighted content, and must not allow any type of filter to
squash or limit these rights. We need to be able to support and protect a diversity of
expression in the online environment.

























































21
Mia 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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