YouTube is like what the library of the previous generation: full of know-how and how-to, abounding in information about DIY projects, breaking news, historical documentaries, pop cultural entertainment, you name it. Whereas we used to pedal our bikes down to the local book repository to dig into all that knowledge, kids today have it at their fingertips; and even better: it’s plugged in. To everyone else. The kind of information sharing that YouTube provides is phenomenal for learning and entertaining purposes—it’s great. But what about when it’s your information that’s shared, maybe without permission. Most trademark attorneys find YouTube’s profitable solution to unauthorized, copyrighted content appearing on its platform pretty clever, and the potential for legal complexities across user-created content on such a site highlights how important it can be for nearly every lawyer to be a technology lawyer.
YouTube’s video sharing wasn’t around before 2005, but it’s hard to imagine the Internet without it now. Bought by Google in 2006, they must have found a pretty resourceful technology lawyer whose brilliant idea it was to “scan user-generated uploads for copyright infringement,” which, when found, would give rights holders “the option to either have the video taken down or to place ads on the video and make money off those views.” Even more traditional trademark attorneys might say this sounds like a win-win.
In fact, “over 5,000 copyright holders, like music labels and TV and movie studios participate in the program,” and YouTube has paid out about $1 billion to rights holders in the last seven years. And while it’s arguable that YouTube could be “an important revenue stream for rights holders,” the actual breakdown of the payout becomes somewhat thorny, in practical application of the theory behind intellectual property law, trademark attorneys like Cam Tu Dang in Nevada might say. On the one hand, because traditionally copyrights protect original material from profitable gain by those other than rights holders, YouTube seems to be doing rights holders a courteous and occasionally profitable service.
On the other hand, though, it was probably a technology lawyer who made sure that the process of flagging unauthorized copyrighted content was “still heavily weighted towards the rights holder,” creating frustrating situations “in which a video uploader has done nothing wrong but is still penalized or forced to subsidize the copyright holder with ads on the uploader’s video.” Trademark attorneys like Dang might say that this slant is Google covering their butt from rights holders who would otherwise sue the pants off of them, but there are loopholes, too.
“Fair use” content lets copyrighted material be distributed “for commentary, criticism, parody and educational purposes, among other things.” And who is deciding what’s copyrighted and what’s fair use? A software program called Content ID, that, it turns out, is often error prone and unwieldy in terms of correcting its mistakes. It may not be a perfect world of online video sharing, and it certainly has fewer idyllic scenes of kids on bikes and more of fingers on keyboards, but hey, it works, at least for now, thanks to Google’s technology lawyer team that keeps getting creative.