Universal Music vs. MySpace, Grouper, Bolt, YouTube?

Is Google really in a DMCA "safe harbor"?
Written by Donna Bogatin, Contributor

UPDATE: Automated video copyright content recognition software by Audible Magic is in use at MySpace to protect against unauthorized uploading of content owned by Universal Music, NBC and Fox. Technology leader Google nevertheless continues to contend "On YouTube, identifying copyrighted material cannot be a single automated process."

Is Google really in a DMCA "safe harbor?"

FEBRUARY 12, 2007: Is today a landmark day for rights holders in the world of online video? 

Early this morning I noted “Google’s $1.65 billion DMCA gamble” asking “Does Google’s YouTube facilitate the theft of copyright content?” 

Universal Music Group has sued MySpace, Grouper, Bolt…but not YouTube.

Will Google soon be asked to defend its YouTube DMCA enabled, content for free, business model in the courts as well, by Universal or some other rights holder?

Just hours before Google announced its acquisition of YouTube last Fall, Universal announced agreements with both YouTube and Google Video allowing for the use of Universal produced videos and user created videos that incorporate Universal owned music in exchange for agreed upon compensation. 

The companies also announced an agreement on a “process to protect Universal copyrights using technology to filter out Universal content that is not authorized to appear on the YouTube service.” 

Google has yet to deliver on its promised filtering technology for Universal, and has not demonstrated an interest in offering such prospective filtering technology to any other rights holder, such as Viacom, NBC, Fox… 

In “Google’s $1.65 billion DMCA gamble” I discussed a New York Times report this morning of an impending settlement between Universal and Bolt. I have since spoken with Aaron Cohen, Bolt CEO, for a first-hand take on the Universal-Bolt negotiations and to discuss how the online video sector may be impacted. 

Cohen confirmed to me that he believes Bolt and Universal to be “very close” to finalizing a settlement. 

Cohen underscored to me, however, that contrary to the New York Times report, the prospective settlement will NOT comprise any “admission of wrong doing.” Cohen is emphatic in his belief that Bolt “has not violated the law.”

Cohen noted, however, that he believes “the law needs to be improved.” 

I asked Cohen for his thoughts on the Digital Millennium Copyright Act (DMCA) “safe harbor.” Cohen told me DMCA is “a flawed piece of legislation.”

Cohen believes the DMCA puts an “undue burden on copyright holders to enforce their copyrights.” He also told me that “companies that use safe harbor to host a significant amount of copyright material risk litigation.”

Cohen expressed to me his belief that 2007 “will be the year in which the Internet community and traditional copyright holders find economic partnerships that are mutually beneficial.”

Cohen also suggested that although “conventional wisdom” is to be critical of music labels, an epidemic of piracy has hurt their business. He believes it is incumbent on Internet publishers to work constructively with all rights holders so all may flourish.

The MySpace announcement today of a “pilot program” to block videos containing unauthorized copyrighted content from being posted may be an indication of such constructive moves.

Using digital fingerprinting technology licensed from Audible Magic, a content rights management company, a MySpace filter screens videos uploaded by users to block any video matching a fingerprint in MySpace's database. The new video filter follows the audio filtering MySpace launched last fall, screening audio files uploaded by users to hinder any unauthorized music uploads.

MySpace announced it has also developed and is making available a special content takedown tool to make it easier for copyright owners to request removal of any user-posted content they claim is unauthorized.

MySpace says it is already blocking users from uploading any audio or video files containing Universal’s music that is not authorized, while allowing for authorized promotional uses that Universal and its artists may permit on MySpace.

According to MySpace, it has offered the full-range of its content protection tools to all other major music labels and to other content owners, free of charge.

MySpace must still face its day in court however, Grouper too. Universal is reportedly proceeding full steam ahead in its determination to be appropriately compensated for prior unauthorized use of its copyright content.

Is Google's YouTube really in a “safe harbor”?

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