Google Taking Down Private Videos For Copyright Infringement?

from the that-doesn't-seem-right dept

Mon, Sep 8th 2008 8:36am — Mike Masnick

Sure, with a $1 billion lawsuit hanging over its head concerning copyright issues on YouTube (even if Google is confident that it's on the right side of the law), you might understand why Google would be a bit aggressive in its ramped up efforts to police content hosted on YouTube. However, should that aggressive effort apply to videos that aren't public? Chris O'Donnell had posted a personal Christmas video of his family to YouTube using a couple of popular songs as background music -- but he set the video to private, rather than public, and only sent it to a few family friends. A grand total of 3 or 4 people had seen the video. Yet, the video is now gone, as Google sent a notice saying that its automated content checker believed the video contained "unauthorized content."

There's clearly no way that the copyright holders in question would have complained about the video, as there was no way for them to see it. This wasn't a public display or public performance of the content at all, and there may be some questions about fair use -- which, as a court recently reminded folks, needs to be taken into account before DMCA takedowns are sent). Of course, technically there's no DMCA takedown here -- as Google was just doing some self-policing, but it seems like a pretty good question as to why the company is policing private videos that aren't for public consumption.

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Filed Under: copyright, copyright infringement, fair use, private videos
Companies: google, youtube

32 Comments

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Platypus, 8 Sep 2008 @ 8:51am

Sometimes they don't SCREW you!
I just got an email letting me know that someone claimed one of my kids' sports videos as their copyrighted content. UMG just claimed the songs I used for the soundtrack, but agreed to leave it up. They get data on the vid, and Google shares ad revenue with them. I get to leave it up, and since it was not for profit, have no issue with anything they can make off of the video.
This makes sense, as the content owner of the songs may sell a few more CDs when people hear music they might not have known about. More media companies should do this.
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Google is Dead, 8 Sep 2008 @ 8:53am

The whole point
The whole point of YouTube is sharing copyrighted material.

YouTube is Dead!
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Ima Fish, 8 Sep 2008 @ 9:21am

Re: The whole point
No, the point of YouTube is the sharing of video. The fact that some people do infringe copyright does not change the point. Just like the point of cars is not to speed, the point of knifes is not to commit assault and battery, and the point of crow bars is not to commit breaking and entering.

To put it another way, YouTube is tool. And as a tool it can be used for bad things and good things. And merely because a tool can be used for bad things does not necessarily mean it should not being used.
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Anonymous Coward, 8 Sep 2008 @ 9:26am

Uhm....if they are self policing, it would seem they have waived any safe harbor provisions, insofar as they have moved out of the realm of simply hosting and into actively screening/controlling their content.

Isn't this the exact thing you DON'T want to do, so you can maintain clean hands?
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shmengie, 8 Sep 2008 @ 9:29am

private?
if it was private, how did they find it? does google actively look at every single video, searching for infringement?
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AC, 8 Sep 2008 @ 9:46am

Re: The whole point
A) No it's not.
B) How is a low-bit-rate copyrighted song playing in the background of a home video causing any economic harm to a record company? Do they really think people are going to go load that video instead of buying it (or downloading it in other ways)? Frankly, I think most of these legal matters should be thrown out simply for failing to show damages.

Go look through any random sampling of YouTube videos, and there will be a bunch with some obscure techno music playing. Almost invariably, in the comments, somebody will ask what song it is (speaking for dozens more who didn't ask), and somebody else will answer (promoting the artist to hundreds or thousands who watched the video). Granted, in the majority of these cases, the interested people will likely download the song without paying, but if even one person buys it legally, isn't that a better outcome than suppressing the music completely? It's like they WANT to keep the lid on their product.

There is only one answer to why this keeps happening:

The music industry sees the writing on the wall. They think the settlements from a series of lawsuits are a better way to monetize their "properties" than selling them. Obviously nobody likes patent hoarding trolls, but the RIAA is doing the exact same thing with copyright. Put a bunch of content into the ecosystem, then sue to make money off it.

They are not defending a failed business model, they invented a new one.
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Norgad, 8 Sep 2008 @ 10:00am

Re: Re: The whole point
Just like Mafias came up with the "business model" of racketeering :P
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Chris ODonnell (profile), 8 Sep 2008 @ 10:11am

I'm the Chris O'Donnell in the story. Interesting point on the safe harbor issue. I wonder if the record companies are paying Google to police its own properties? Would that give Google safe harbor cover?

BTW, this is Google Video, not YouTube.

I followed the complaint procedures listed on Google but have heard nothing to date.
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Mike (profile), 8 Sep 2008 @ 10:16am

Re:
Uhm....if they are self policing, it would seem they have waived any safe harbor provisions, insofar as they have moved out of the realm of simply hosting and into actively screening/controlling their content.

Nope. There is nothing in the safe harbor provisions that says you lose them if you police. In fact, courts have ruled the opposite.
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Chris ODonnell (profile), 8 Sep 2008 @ 10:30am

I just checked my video account at Google and the video is suddenly live again. Fear the power of Techdirt :)

Actually, I have no idea when it happened, it could have been over the weekend. Google didn't notify me when they unblocked the video. Clearly, I should make it public and share it with the world now :)
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Keybored, 8 Sep 2008 @ 10:41am

I hate the new world order...
ut oh, the video of my dog doing some stupid tricks shows a can of Budweiser on the picnic table. Quick take down the video: UNAUTHORIZED USE!!! SPARE ME, SPARE ME!!!!
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anthony, 8 Sep 2008 @ 10:43am

Re: The whole point
Thats why they have torrent :)
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mslade, 8 Sep 2008 @ 10:49am

This isn't that interesting...
Google is being attacked in court, so they're trying to be safe with some automated policing. Automated policing is always going to have either false positives or false negatives. Google is erring on the side of caution, and I don't blame them. They turned off a video that probably shouldn't have been turned off, then turned it back on.

Sometimes it seems like we have nothing better to do than overreact to every microscopic decision or mistake these companies make.
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Anonymous Coward, 8 Sep 2008 @ 10:57am

Re: Re: The whole point
No, the point of YouTube is the sharing of video.
Would you care to give some examples of non-copyrighted videos being shared on YouTube?
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Anonymous Coward, 8 Sep 2008 @ 11:08am

Re: Re: Re: The whole point
Awkward Pictures releases a majority of their stuff on YouTube. I think the videos are hysterical. Search for them or go to their website. There are plenty of other people who release completely non-infringing material. Its a caveat to say "non-copyrighted" because, by default, virtually all content is copyrighted immediately upon creation. The creator has to go out of their way to put it immediately into the public domain.
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some old guy, 8 Sep 2008 @ 11:09am

Re: Re: Re: The whole point
I have watches several movies on youtube that have passed into public domain. Too bad I can't think of their names so I can find you a link.
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HFC, 8 Sep 2008 @ 11:13am

Re: Re: Re: The whole point
"Would you care to give some examples of non-copyrighted videos being shared on YouTube?"

That's a trick question. Technically, every video on YouTube (or Google Video, in this case) is copyrighted.

I'm pretty sure what Ima Fish meant was, these services are for sharing material for which you own the copyrights or for which you have been given permission to share/display to the general public. There are tons of those videos available.
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Anonymous Coward, 8 Sep 2008 @ 11:20am

Wasn't it the point of the DCMA to help protect companies because there was no way that a site owner could possibly prevent its users from posting material that may violate the law?

Doesn't this self policing kind of hurt that argument? If Google can do it, why can't YouTube? Why wouldn't Viacom take this and go into court and tell the judge "look, they can stop it if they want to, but the choose not to?"
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Voice of Reason, 8 Sep 2008 @ 11:26am

The point
Before everyone freaks and grabs the pitchforks, may I offer this scenario:

1. Google's AUTOMATED content checker scanned Mr. O'Donnell's video, found music it knew to be copyrighted and pulled the video as well as flagging it to be reviewed for content.

2. Once the vid was reviewed by a real live human, it was found to be A.) A low-bit-rate sampling (as pointed out by a previous poster) of copyrighted material that was simply used to accompany someone's home video and B.) Marked private and therefore could not possibly be infringing because it is specifically not a public performance nor used in any sort of advertising vehicle.

3. Once the material was confirmed to be non-infringing, it was made available again. No harm, no foul.

We gotta remember that Google is a big company with deep pockets and as such, is a target for every lazy conniver who would rather sue than work for a living. If we're going to lambast them for covering their big, cash-filled arse, then maybe they also deserve kudos for actually looking into the matter and not only coming to the correct conclusion but acting correctly on it as well.

Just a thought.
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Chris ODonnell (profile), 8 Sep 2008 @ 11:41am

I probably wasn't an isolated case. How many hundreds or thousands of those emails are they sending out per day? How many of Google's users are clueless enough to panic and immediately delete non-infringing content? There are several other videos in the similar vein, in one case something I did for a non-profit and actually posted to the the orgs web site. None of those were flagged. The duplicate copy of the flagged video was not flagged. I have no idea how their software works, but immediately checking every video in the account that was just flagged seems like one of the very first features that would have been coded.

How many millions of blatantly infringing videos exist on Google and YouTube at this very instant? Something isn't working right with Google's efforts to police the sites. They shouldn't even be bothering with unlisted videos. Moving a video from unlisted to public might be a very good reason to check it out. An unlisted video with excessive traffic might be worth checking out. But an unlisted video with zero views seems sort of pointless.
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Rod MacPherson, 8 Sep 2008 @ 11:54am

Re: Re: Re: The whole point
http://www.youtube.com/results?search_query=Prelinger+Archives+public+domain&search_type=&aq =f
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Mike (profile), 8 Sep 2008 @ 12:35pm

Re:
Doesn't this self policing kind of hurt that argument? If Google can do it, why can't YouTube? Why wouldn't Viacom take this and go into court and tell the judge "look, they can stop it if they want to, but the choose not to?"

Nope. The law does not REQUIRE you to self-police, but doesn't punish you if you do.
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wasnt me!, 8 Sep 2008 @ 12:45pm

for the ppl who followed the law suit a few days ago. (http://techdirt.com/articles/20080827/2332412121.shtml)

were the judge ruled that the hosting site is doing enough to stop copyrighted material using automated checkers, black listing users who have history of posting copyrighted material and taking down material when its alerted about them (basically following the DMCA to the letter) it should be no surprise google/ youtube has to prove that its legit at 100% and needs to show its not interested in making money off illegal material.

perhaps as you suggested this might be taking it a bit too far but you can bet that wasn't the 1st video (with similar "attributes) removed from the youtube servers and you can bet the google lawyers will name them or provide a list with them.
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Nasch, 8 Sep 2008 @ 1:02pm

Re: Re: The whole point
the point of crow bars is not to commit breaking and entering.

Whoa, what?? What do you use YOUR crowbars for?
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Anonymous Coward, 8 Sep 2008 @ 1:31pm

Re: Re: The whole point
I think the point is that the general population is reminded of something and wants to see a clip of an old TV show or a theme from a show and goes to YouTube.

In general we don't go there to see the musings of someone that thinks they're funny wearing an ape mask or drinking Coke and eating Mentos or discussing why they think Pokemon is great. There are a few things that I've found entertaining by every day people but it's mostly music and considering some of it's covers they'll probably be yanked down. I also tend to think (as the story kind of points out) that Google will over compensate and remove a lot more than needed.
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Anonymous Coward, 8 Sep 2008 @ 1:47pm

"This wasn't a public display or public performance of the content at all"

Yes it was. It was a public display of content to 3 or 4 of his friends. The fact that it was viewed by anyone makes it a public display. It doesn't matter if they were family or friends.

If I seed a private torrent of a copyrighted movie, it's still a copyrighted movie even if the only people who download it are my friends and family.
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Ortzinator, 8 Sep 2008 @ 2:22pm

Re:
Your analogy is completely wrong. They're not keeping a copy of the video, they're just watching it, which would be the same as if I invited some friends over to watch a DVD.
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Bone, 8 Sep 2008 @ 2:32pm

public performance
"yes it was. It was a public display of content to 3 or 4 of his friends. The fact that it was viewed by anyone makes it a public display. It doesn't matter if they were family or friends."

U R Stupid

please look up what legally defines a "public performance" before you post ignorance.
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alvin, 23 Dec 2008 @ 2:26pm

uhh...
Youtube should have never mergered with google. everyone is mad about it. they have destroyed youtube's rep. and made it a "touchy" website.
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alvin, 23 Dec 2008 @ 2:26pm

uhh...
Youtube should have never mergered with google. everyone is mad about it. they have destroyed youtube's rep. and made it a "touchy" website.
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Davedude2000, 1 Aug 2009 @ 12:43pm

removed numa numa
I made a numa numa video that was removed. It was removed for inappriate content but was simply funny and far more offensive stuff is on the web. I or a friend may repost it with commentary discussing censorship and youtubes unfair policies if they don't respond to the letter I wrote them in response to removing my video. This would make the video a news article and then it should fall under the fair use exemption for copyright claims.
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Anonymous Coward, 24 Oct 2009 @ 8:27pm

Re: Re: Re: The whole point
prying nailed together wood when I'm working a kitchen or bath demolition job before a remodel
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