Code is Law

Geeta Dayal, Wired: On Tuesday, some visitors trying to get to the livestream of Michelle Obama’s widely lauded speech at the Democratic National Convention were met with a bizarre notice on YouTube, which said that the speech had been blocked on copyright grounds….

On Sunday, a livestream of the Hugo Awards — the sci-fi and fantasy version of the Oscars — was blocked on Ustream, moments before Neil Gaiman’s highly anticipated acceptance speech. Apparently, Ustream’s service detected that the awards were showing copyrighted film clips, and had no way to know that the awards ceremony had gotten permission to use them.

…As live streaming video surges in popularity, so are copyright “bots” — automated systems that match content against a database of reference files of copyrighted material. These systems can block streaming video in real time, while it is still being broadcast, leading to potentially worrying implications for freedom of speech.

It is not just patent law which is out of control. If a copyright bot takes down a video for which there is fair use there ought to be grounds for a counter-suit.


Surely there needs to be some penalty for falsely asserting ownership on one's own or someone else's behalf.

Right now, any rational organization will accept large numbers of false positives.

I imagine if there was a $1,000 dollar penalty for each item that was mistakenly identified as pirated, the ratio between false positives and false negatives would be far more acceptable.

I think YouTube's fineprint allows them to pretty much delete anything they want doesn't it? Forget bots and the reasons but the counter-fine etc. has very thin legal ground.

The bots are contracted by the hosting service (Youtube etc.) and I don't see how the uploader could sue YouTube for a free service. The copyright screening is not even a legal-requirement for the hosting site; they are doing it gratuitously because they can (or because the copyright owner scared / cajoled them into it ).

If the bot does make an error the only one with grounds to sue is the hosting service since the "automated takedown system" seller had a contractual obligation to only the hosting service and not the uploader.

Yes, in the case of YouTube right now. But if the legal burden were shifted, then I think that either YouTube would change their practices or some competing service (and they're pretty easy to make, just network effects are strong) would rise in popularity

And even if YouTube just collected all sorts of free $1,000 penalties each time a fake claim was made by the studios, I'm pretty sure that would cause studios to change their tactics or tweak their bots. (If the bots are actually run by the studio, that is. If they are a YouTube feature, then the part about competitors arising would hold true.)

Considering over 90% of all takedown claims are fraudulent they could charge a lot less than 1000 and still rake it in.

If the bot does make an error the only one with grounds to sue is the hosting service

You don't think that giving the hosting service that right would change the equilibrium in a hurry?

YouTube would, as a requirement for posting, disclaim all damages, including false exclusion on the basis of the bot.

It is not a right, but a privilege, to post on YouTube, as YouTube might say.

You could shift the burden, however, by posting a bond to YouTube that your material has not infringed the copyright of someone else as a way of getting around the bot. If no one claims infringement, the bond is not exercised.

And, if it is a bond, you can buy insurance.

"""It is not a right, but a privilege, to post on YouTube, as YouTube might say."""

This is correct, but there are a few twists:

(1) The law gives YouTube strong incentive to take down things on a hair-trigger. Those laws should change. Moreover, if FooCorp persuades YouTube to take down Mrs Bar's video on dodgy copyright grounds, the law should at least allow FooCorp to be punished.

(2) Although YouTube is a private entity, it enjoys a special position as a gateway to pubic information. If I want to find a video by Mrs Bar, then my best bet is to look on the largest repository. If Mrs Bar wants her videos seen widely, she should prefer the largest repository took.

Such feedback loops leave individual companies controlling the bulk of particular forms of media. (YouTube for video clips, Twitter for rapid-fire text, Facebook for whatever-the-hell social networking is).

YouTube, without the law, had no incentive to take things down, and in fact had an incentive to have copyright violated materials on their site to draw visitors.

It's always going to be difficult to equilibriate these things. The best we could do would be to mimic the results we get in the physical world--which means that publishers check what is submitted by an author if it clearly contains infringed copyright designs, pictures, etc. Newspapers also check copy submitted to them. In the eworld, everything is almost instantaneous. Automatous systems are cheaper for YouTube than having someone view each image or handle each complaint.

Psst Wanna buy a Rolex?

Exactly right.

Alex, are you patting yourself on the back, or is this a reply fail to Tom West?

And just to add to this point - 'If a copyright bot takes down a video for which there is fair use'

In the case of NASA, there was no need for 'fair use' to be invoked. To the extent that the public domain videos of NASA have a copyright holder, they are not the news organizations which demanded the takedown of NASA's own feed.

At this point, the system of U.S. copyright is so broken that non-owners seemingly have more rights than owners, a problem particularly acute in the case of material which is available to all. Though from a certain perspective, that may be a feature, not a bug - after all, if there is one things copyright holders hate, it is the very idea of the public domain. To the extent that U.S. copyright has prevented anything from entering the public domain since Mickey Mouse hit the silver screen, seemingly violating the very reason for which the government ensured monopoly that is copyright is granted -
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' Article I, Section 8, Clause 8 of the United States Constitution

While I agree that copyright law is out of control, I am not sure about counter suits over copyright bots. I have a right to free speech and by extension, I have a right to make fair use of other peoples intellectual work. But it seems a bit of a stretch to say that I have a right to upload a video clip for free to a web site that other people are paying for. And this all a copyright bot is really effecting.

It is true that copyright bots are a reflection of a broader problem in the US where it is possible for people with money to bully others simply because there is little effective recourse if you are victim of dubious law suits. It does not do you much good to "win" in the legal sense if it cost you money and time that the other side can afford and you cannot. In such a context, copyright bots with all their false positives are a rational course of action. And since I did not pay for the servers that Youtube uses, it seems to me to be legal one as well.

To my mind, your ire would be better served figuring out how to address the balance of power in the legal system.

I'm tempted to agree. I think copyright law is broken, but I do not think it is somehow a fundamental right of mine to be able to post something on Youtube for free or to be able to watch something on Youtube for free.

That's not to say I like the status quo. The laws and business practices are dumb. Things are messed up. I'm just a bit bothered by the sense of entitlement sometimes implied in these discussions. Now if Youtube were some publicly owned entity funded by taxpayers, I'd feel different. But it's not. It's a free service offered by a private firm. They're perfectly entitled to do dumb things that annoy their users.

'And since I did not pay for the servers that Youtube uses'
But you did pay for the video that NASA was providing to Youtube, falsely removed by a news oranization which claimed the video you, along with America's other taxpayers, had paid for, was not yours to watch.

It occurs to me that both this post, and many readers, may be unfamiliar with this, showing America's current state of cybernetic development -
'NASA’s livestream coverage of the Curiosity rover’s landing on Mars was practically as flawless as the landing itself, a refreshing alternative to all that troubled Olympics coverage. The broadcast – full of suspense, lucky peanut-eating, and ecstatic congratulations – was slow and hard to reach at times, but NASA servers never failed. Along with burnishing its online publicity credentials, NASA had prepared for a global audience of millions

But NASA couldn’t prepare for everything. An hour or so after Curiosity’s 1.31 a.m. EST landing in Gale Crater, I noticed that the space agency’s main YouTube channel had posted a 13-minute excerpt of the stream. Its title was in an uncharacteristic but completely justified all caps: “NASA LANDS CAR-SIZE ROVER BESIDE MARTIAN MOUNTAIN.”


Stop the band. The video was gone, replaced with an alien message: “This video contains content from Scripps Local News, who has blocked it on copyright grounds. Sorry about that.” That is to say, a NASA-made public domain video posted on NASA’s official YouTube channel, documenting the landing of a $2.5 billion Mars rover mission paid for with public taxpayer money, was blocked by YouTube because of a copyright claim by a private news service.

Within hours, the problem was fixed (and the title switched back to a calmer regular title case — see the video below). But it was still a disappointing blip in an otherwise exceptional moment for humanity, what President Obama called “an unprecedented feat of technology.” It was also an interesting little object lesson in what’s still wrong with online copyright enforcement.

I have a right to free speech and by extension, I have a right to make fair use of other peoples intellectual work. But it seems a bit of a stretch to say that I have a right to upload a video clip for free to a web site that other people are paying for.

I'm sorry, I don't understand this claim or Michael's agreement. Can you elaborate?

What is free speech without the right to exercise it? You don't have the right to YouTube existing, and you don't have the right to force YouTube to accept the video if YouTube doesn't want it. But your action can't be blocked for faulty reasons. For example, you don't have "the right to post something on a public bulletin board
for free" if the community doesn't want to offer it, but it can't be blocked on the basis of viewpoint. If fair use is an extension of the right of free speech, then preventing someone from using it solely on the basis of claiming that they don't have the right to say it is a free speech violation.

Now, when YouTube is the one doing the policing voluntary, that is a different issue somewhat. Yet I am pretty sure that YouTube's behavior would change if they could countersue or otherwise resist these automated claims legally. If it didn't, then some competitor surely would, and people would have a chance to flock to the competitor instead.

you don’t have “the right to post something on a public bulletin board for free” if the community doesn’t want to offer it, but it can’t be blocked on the basis of viewpoint

I think it can. And you do not have any legal recourse against it. Maybe a lawyer can clarify.

If it is public, then no.

That's a different case than YouTube, because YouTube is not public. I was simply offering a case from a different area of First Amendment law.

The point is that YouTube would love to have these things posted; the only reason they and competitors don't is because of the threat of lawsuits. Certainly if the law changed YouTube could continue to block such videos, but they almost surely wouldn't, or else be overtaken by a new video service.

Arguing that the video service would have the right to counter sue is arguing that it would make a big difference.

I am saying that the purposed cure is not moral. Let us say that I own u-tube. Should you be allowed to sue me if I decide that I don't want any porn on u-tube? Porn is very subjective word. You could argue that I unfairly apply it. But I don't think you should be allow to sue me over the issue. Now let us take this example a little bit further. Let us say that some group or other complains that stuff you posted is porn and I listen to them and remove it. Should you be allowed to sue them? I say no.

The only reason you can find any plausible reason to allow counter suits is that it is your belief (almost certainly correct) that it is the fear of law suits that makes U-Tube behave the way that it does. Thus, you are saying there should be a competing right to file laws suits so as to create a balance of terror as it were.

To my mind, this is wrong regardless of whether you sue the people making the complaints or U-tube itself. It most likely is fear that makes U-Tube do what it does, but they could conceivably do it voluntarily for a variety of different reasons (say they where owned by the companies that held the copyrights is question). I think it is wrong create grounds for lawsuits over consensual acts committed by people who own the property in question. Maybe there is fear there, maybe there is not. But regardless of whether there is fear or not, no one, not even NASA, has the right to post things to Youtube. Therefore the refusal of Youtube to post a video for free should not be grounds to sue anyone.

The real problem here is the law and it is the law that should be changed. The particular problem here is the fact that Youtube itself can be legally sued if copyrighted material is posted by its users to its website. I think that this is wrong. The copy write holders should be required to prove in a court of law that a particular Youtube user violated their copyright. At which point they should be able to go after the uploaded for damages and not Youtube.

Copyright holders would claim that this would nullify copyright law and enable Youtube to profit from copyrights being violated. But copyright holders have made similar claims about hardware manufactures and have tried to force hardware manufactures to provided ways of preventing "theft". So far, the law rightly holds that it is not the hardware manufactures job to prevent "theft". I think a similar logic should be applied to Youtube and sites like it.

I don't think this would make copyright law unenforceable (at least, anymore than it already is). Copyright holders could go after individuals and make examples of them and they would be allowed all legal powers to find those "thieves". In other words, they could force Youtube to turn over identifying information if a court agreed that they had probable cause. The cost would out way the benefits in the short run, but a few examples should make people think twice. The real problem is the copyright holders don't want go after the little guy because they don't want to true costs of current copyright law to become apparent. They would rather sites like Youtube police things and be the bad guy while they can hide in the shadows.

"But it seems a bit of a stretch to say that I have a right to upload a video clip for free to a web site that other people are paying for."

You do have the right to contract with that website for whatever terms you mutually agree to, subject to the actual laws such as the DMCA. The copyright bots are driven by tortious interference from the self-described rights holders, who by threat of additional legal action demand more stringent action than the law requires from the hosters.

In addition, the NASA case includes an outright fraud on the part of Scripps who held no rights over the material.

The point of the article was that the bots were not discriminating between illegally-copied material and material for which was being legally broadcast. In the case of the Hugo award stream from Worldcon, clips from various films were shown with the permission of the copyright holders. In the case of the NASA imagery, a news organization asserted ownership of materiel that it manifestly did not own - merely because that materiel was included in one of its own broadcasts.

The bots are really a question of contract between the uploader of the video and youtube / ustream / whoever. Youtube is probably not so terribly far away from having a monopoly in the provision of streaming video, and the state gets to merrily rewrite all sorts of contracts when a monopoly is involved...

Copyright law is out of control.
Patent law is out of control.
... and trademark law is out of control.

That's right, everything that helps to maintain monopoly is out of control.


My sense is that copyright is even more out of control than patent law, especially with respect to the ever-shrinking realm of "fair use." Publishers, including those online, have become so scared of being sued by alleged content owners that they routinely require copyright permission before they are willing to republish even short quotes or excerpts that clearly fall within the parameters of "fair use." I have experienced this tendency myself in publishing textbooks, where the publisher has required me to obtain copyright permission for a one- or two-sentence quote from another book.

One aspect of the problem that (alleged) copyright holders are far more likely, for obvious economic reasons, to sue to prevent publication or for damages than would-be users are to sue claiming "fair use."

Vigorous protection of intellectual property laws is indistinguishable from totalitarianism.

That's certainly the point of view in mainland China.

I agree. Effective protection of intellectual property requires policing people's minds almost by definition. But at the same time, a world where anyone can sue anyone over every little thing is little better than anarchy were people with guns solve their own disputes. We don't need to expand the grounds for law suits as Alex is purposing. We need to reduce the grounds for law suits.

Why is Alex so anti-IP? For example, "play by play" in real time of say a baseball game has been prohibited since the 1950s. Sure Reagan did some but he was the last of the breed. Nobody seems to complain about that. The content owners have to recoup some expenses, no? As for fair use, what fair use do you need for 'real time' broadcasts except to enjoy the event in real time? BTW I could not get the Olympics in real time on the web--despite assurances to the contrary--and I had to use a remote proxy server from outside the USA to watch the games. No big loss.

See my workaround above, ie, posting a bond or insuring, to get around the bot problem.

IP holders have legitimate rights which are worth nothing unless there is cheap and effective enforcement.

The creative class gets ripped off all the time.

These remarks are copyrighted.

Good question. I think Alex (and many of us) question the social utility of IP law on theoretical grounds (i.e. such laws are too-coecive and liberty-restricting) and on practical grounds (such laws are not necessary for promoting innovation).

'The content owners have to recoup some expenses, no?'

And as one of the content owners of NASA video, I would certainly appreciate any private entity that claims ownership of it to be punished.

Another great post from Alex. Thank you. But what about the larger question here? Does copyright law (and IP law generally) promote innovation, or does it stifle it?

If you are an infringer, I suppose, it might be a great post. Or, if your business model relies on others who infringe to fill your pipeline (YouTube) with content.

Why the hositlity to IP? People can claim IP infringement, but they still have to go to court to prove it, and judges, like it or not, are not fools; they're just like you and me. What the annoyance is is with the ease of making a claim of infringment, and then having to haggle with someone over whether it is an infringement. You can work this out as a game theory problem or a bargaining game theory problem and find the solution: if you have no claim, you don't win and bear the costs of losing.

I think the "YouTube requires others to post copyrighted material" argument is a doubled edged sword. All creative types rely on borrowing from other people. The idea that you can "own" an idea is borderline absurd. For most of human history the idea that you could be sued for singing a song that someone else made would seem absurd.

Now, I am not presenting the above statements as some kind of definitive proof that intellectual property is a fraud. I understand that there are some good arguments for allowing some kind of intellectual property. But I think that people who don't understand that this is a tricky subject are being deliberately obtuse.

At first you could only own an idea for a set amount of time (the idea being that you would reap a just reward for the idea in return for not keeping it to yourself). Then you could own an idea for your lifetime. Then it became you could own your idea for your lifetime plus the lifetime of your children. Where does this end? Should the idea of a wheel still be owned by someone? Should the idea of a printing press still be owned by someone? Should the idea of a car still be owned by someone? At what point does it become self evident that an idea should not longer be owned by any one entity?

Current law just keeps stretching it out longer and longer and I think it is long past the point of being absurd.

Ape Man, The idea that you can own an idea, of course, is borderline absurd: but that's not what copyright covers. It doesn't cover ideas; it covers expressions. The idea of an animal cartoon character looking like a mouse is not protected; the drawing of Mickey Mouse is protected.

On the patent side, you can own an idea, but it has to meet the standard of patentability--novelty, non-obvious, etc. A patent is a tradeoff--you get to exclude others, but you have to disclose the patentable idea, which you might have otherwise kept as trade secret, or not developed but for the patents exclusivity of use.

I fail to see the distinction. A song is protected by copyright (and was an example that I used above). To say that a song is not an idea but how make something is an idea is splitting hairs finer then I can see.

As for the patent side, I understand the trade off and made mention of it as well. But after a certain point a patent would lose all of its purported value if its protections never ended. I think the same logic should apply to copyright.

Ape Man,

Let me question the assumption: "For most of human history the idea that you could be sued for singing a song that someone else made would seem absurd."

Not on my jukebox in my bar. I am visited by BMI and ASCAP for licenses.

But, of course, you can hum my tune, but that is not what is being talked about, is it. It is about copying what someone else hummed and sending it to your friends.

Don't be so crude Alex. Don't call them 'copyright bots', they are fellow setinents, turings if you will.

There is a way to go after a bad faith takedown notice. Part of the DMCA addition to the Copyright Act, 17 U.S.C. 512(f) allows attorneys fees to be awarded to someone who shows a takedown was done in bad faith. It might need more teeth though as it has been rarely used. Maybe adding a penalties on top of the attorneys fees. Especially for live events or time sensitive video, having it down for a week or even an hour basically kills most of the value.

Another question might be can the bot have "bad faith." I'd say the owner or programmer of the bot can if the code didn't allow for a reasonable investigation as to whether the content was licensed or fair use. I'm going to go out on a limb and say the bot code doesn't check for that.


Bill, you're giving a +1 to the idea of adding additional penalties to the existing ability to counter sue a bad faith takedown? Don't you argue against that elsewhere on the page?

Paul's comment is completely in accord with Alex and Tom West.

No, John, not at all. Read my first comment. Having a right to sue for bad faith assertion of a right is not at all inconsistent with having a good faith protection of a right.

As you would say, read carefully.

The ironic part is that these preemptive bot strikes are not at all legally required. DMCA merely requires a hosting agency to takedown after a legitimate complaint by copyright holder.

No idea why YouTube and its ilk are being so touchy about it.

No idea why YouTube and its ilk are being so touchy about it.

It is part of a "zero tolerance" bureaucratic attitude that increasingly seems to permeate everything, including criminal law.

We recently posted something to scribd that contained public domain text and text that we had all IP rights to, and the scribd bots removed within minutes after upload "due to copyright infringement". Sheesh.

Because of the threat of them being sued, and the fact that if the rights holders are wrong YouTube gets no recompense. They err on the side of caution because the legal incentives cause them to.

Rahul, your argument only strengthens the case for giving YouTube a stronger power to get damages.

I think I mis-understood you. I'm totally for enhancing YouTube's right to collecting damages from copyright holders for bad claims.

My point was it is iffy to give any similar rights to uploaders against YouTube (free service).

Because of the threat of them being sued
It's hard to credit this concern . . . they are immune from suit as long as they promptly respond to take down requests

"If a copyright bot takes down a video for which there is fair use there ought to be grounds for a counter-suit."

Against whom?

Counter-suit? In what original suit? There's no suit involved.


I have personally sat down at my piano, recorded music written in the 19th century and before, posted it to YouTube, and received copyright violation notices. I'd love to sue someone, because it is a PITA to respond.

I'm wondering is there grounds for a tort here? Say, bot-company (or copyright owner) mis-advices or threatens YouTube and YouTube removes a video that was perfectly legal.

If an uploader could prove he was "harmed", could he sue the copyright owner for tortuous conduct? That ground should obviate the defense that there was no explicit contract between the uploader and copyright-owner / bot-company.

On the tech side, Andy Baio is always a thoughtful observer of this issue:

For uploaded video, one could imagine that youtube etc. could check the video at upload time against their content bots, and it it gets a hit, require you to certify that you have the rights to upload whatever content (the bot should identify the infringement, not just "something owned by someone"). Then, if the content owner sues, youtube shows them your signed waiver, and points them at you instead.

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