How close is "very close"?

Earlier this week Google's CEO Eric Schmidt was quoted saying that YouTube is “very close” to turning on a filtering system that should prevent copyright content from being uploaded to the video site. At the moment it is not clear how exactly this filtering system will work. A clue might hide in previous news reports suggesting a cooperation between YouTube and companies that specialize in digital content filtering technology.

The answer to the question which technology is important for evaluating this last maneuver of Google. As a rule of thumb, it is quite risky and therefore unwise to guess what Google is about to do next. Many of Goggle’s competitors, and those who never thought they were Google’s competitors, have first hand experience about this bitter truth (see eg Google’s recent announcement of a new application for creating and sharing interactive presentations, added to the existing Google Docs & Spreadsheets – on its way to provide a comprehensive and free alternative to Microsoft Office).

Having that said, I dare to propose that the technological solution is likely to somehow involve keeping records of works on YouTube’s database (or the database of its partner company to which the filtering job will be outsourced). Now, this is just a speculation, but I don’t think it is completely far fetched. This assumption is based not only on the way some current online filtering technologies work (see eg this report and reservation on the Screendigest website), but more interestingly, also on strategic behavior in which Google famously excels.

So this is how it might work. Google/YouTube will say the following to Viacom and other media mammoths that can’t wait to see what will come out of the giant copyright lawsuit filed last month against Google/Youtube: I (Google) will do the filtering job for You (Big Media), although I am not strictly obligated by law to do so, since I am protected from liability under section 512 of the Copyright Act (as long as I follow the notice-and-take down practice and other statutory requirements). I’ll do so anyway, but in return, You (Big Media) must give Me one digital version of all the works with respect of which you have copyright entitlements. Google could justify this demand as being a necessary technical requirement, which is the minimum Big Media could and should do before Google is taking over the responsibility of becoming a major online copyright cop. Fair deal?

In the shoes of Viacom & Co. I would feel somewhat inconvenient in the face of such a choice, not to say pushed to the corner. On the one hand, there is no obligation whatsoever imposed on copyright holders to surrender copies to potential infringers and facilitators before suing them. This would be absurd. On the other hand, Google’s argument - presenting this as a technical issue - would be quite powerful. Besides, there is no guarantee that the court is not going to accept Google’s theory about the applicability of section 512. Whether the billion’s lawsuit against Google actually reaches the stage of a judgment or not (I think no), it seems that such strategy could adversely influence the bargaining position of Big Media. (It is true that not all video filtering technologies are based on comparing the uploaded video to work's information that resides on remote databases. But it is now Google's turn to make a move, and choosing the technology may not depend only on factors such as cost, efficiency, reliability etc.)

The next question is why should Big Media object to voluntarily surrendering one digital version of each copyrighted video in its catalog for the sake of helping Google to fight online infringement? There are many possible answers to this question that Big Media will surely come up with if and when the day comes. But what if Big Media said “yes” - as part of an out-of-court settlement or another form of compromise with Google? In addition to being the most significant phenomenon in the field of Internet search and one of the most significant phenomena of the Internet in general, Google would then possess a huge catalog of digital works. Logistically, Google seems capable of doing that. Possessing digital copies should presumably come with rightholders’ permission to analyze and use this information (only for filtering purposes, remember?)

Scary? Maybe. What implications? It’s time to stop speculating and wait for the next rabbit Schmidt is going to pull out of his hat...

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