“Robots Mistakenly Take Down Livestreams” | Lamar Smith to blame probably.
Adam Holland, September 18, 2012
Abstract: There has been a recent flurry of incidents where automatic software monitors have blocked access to live streaming video feeds on the grounds of copyright infringement. We take a closer look, and discuss the implications.
“Robots take down livestreams”
“There is nothing wrong with your television set. Do not attempt to adjust the picture. We are controlling transmission.”
Would-be viewers of the livestream for the 2012 Hugo awards or of Michelle Obama’s speech at the Democratic National Convention could have been forgiven for thinking they had somehow stumbled upon an episode of the old 1960’s sci-fi thriller show The Outer Limits, with its assertion of total control of the viewers’ television.
Viewers of the 2012 Hugo Awards ceremony were enjoying a speech from celebrity author Neil Gaiman when they saw “”Worldcon banned due to copyright infringement”, and the stream ended. DNC viewers saw this message.
“This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.”
In each case, automated content monitoring and filtering software had determined that the stream contained unlicensed copyrighted content, and so had blocked it.
The World Science Fiction Convention had arranged to stream the Hugos with Ustream, a company that uses a 3rd party software product called Vobile to check for unauthorized content in its streams. There are many similar companies doing business in this area, including Attributor, Audible Magic, and Gracenote. The DNC stream was being hosted by partner YouTube, whose own ContentID software will flag videos or streams for, among other things, copyright violations. In the case of the Hugo awards, the triggering content was likely clips from the BBC’s TV program “Dr. Who”. Gaiman was accepting an award for having written a “Dr. Who” script, and so of course his speech was accompanied by clips of the show in question. It’s still not clear what triggered the DNC’s block, since the warning message implicates ten different possible rights holders. Current speculation is that the music playing in the background at the convention, almost certainly under copyright, was the protected content in question. Regardless of the cause, the problem that these two incidents share is that in each case, the automated content monitor was wrong. The streams should not have been taken down because of a copyright claim. What’s most interesting is that the law does not require YouTube or Ustream to preemptively monitor their videos for copyright violations. To do so is an internal decision on the part of the companies to do more than the law asks of them, which is to respond to content owners who file a written take-down notice. . Here, the content owners may be completely unawares. But to what end? And who benefits?
Although they would have had a powerful argument that using the clips for criticism and commentary was a fair use, the Hugo Award organizers had carefully cleared the use of every clip they intended to show during their awards ceremony. That is to say, they knew they were dealing with copyrighted material, and did their best to respect and honor those rights, working within the licensing system as it currently exists. But their stream was of a live event, and so when it went dark, they had no useful recourse. As the CEO of Ustream put it on his blog “Unfortunately, we were not able to lift the ban before the broadcast ended.” The many fans who had hoped to watch live online were disappointed, although Ustream ultimately rebroadcast the event. . Although the takedown itself was automatic and instantaneous, the procedures for getting something back up involved human beings, and were much more laborious. Ustream has suspended its monitoring software until it can sort this out. What’s really interesting, though, is that even prior to the uproar, it was possible for a Ustream client to avoid being monitored and possibly blocked by Vobile by…paying Ustream some money. Ustream offers a free, ad-supported service—which the Hugo awards were using—as well as a paid “pro” level to which Vobile is not applied. Put another way, if a user gives Ustream some money directly, it would in theory be possible to stream infringing material without having Vobile watching the stream, and without being taken down, because paid users are ”automatically whitelisted. ” Although it wasn’t part of their original explanation, Ustream later added that if free users inform Ustream in advance that they have cleared all the relevant rights, they too can get white-listed, but acknowledges that their “messaging to our broadcaster community how this process works [was] inadequate.” Also intriguing is that Vobile has denied any
contact with Ustream during the event.
YouTube was apparently taken unawares by the blocking of the Democratic National Convention’s stream, and later described it to inquiring
journalists only as a “technical error,” as well as claiming, confusingly, that “Neither the live stream nor any of the channel’s videos were affected.” Of course, if it was music in question, political parties usually negotiate a blanket license to play music, so it’s unlikely any music at the convention hadn’t been cleared. The video itself was later marked as a “private” video, instead of showing the takedown notification. As of this writing, the link goes to a convention page on the Barack Obama website, and no stream or video is referenced.
These two high profile events are by no means the first time content has been taken down automatically but mistakenly. Copyright claims made by Scripps News Service against NASA video have been at the root of several takedowns from YouTube, most recently with footage of mission control NASA’s Curiosity Rover mission. As a government funded agency, NASA’s video of the control room during the mission was in the public domain. Scripps News incorporated pieces of that public domain video into its broadcasts– in which Scripps asserts its own copyright– and which Scripps places on file with YouTube’s ContentID.
The result? Exactly the reverse. The original video was taken down because ContentID flagged it as containing copyrighted material for which the rights had not been cleared. Sometimes, there is no potentially copyrightable music at all. . The clearance software, at least as of now, is not sophisticated enough to realize that the copyrighted broadcast material from Scripps contained material that cannot be subject to copyright. The software will likely never be good enough to evaluate whether the presence of copyrighted material is a fair use, an evaluation that is notoriously context–specific. It’s easy to imagine something similar false-positive takedowns happening with video published to the web under any of the various Creative Commons licenses that allow sharing. In fact, this kind of thing happens with some frequency, often with the right hand not knowing what the left is doing, because ownership claims under the DMCA operate under a de facto honor system, and it’s easy for a fraudulent or inadvertent claimant to to try to get ad revenue by claiming copyright in someone else’s material. It’s relatively simple to have content removed, and quite challenging to have it put back up. That’s part of the “deal” that lets places like YouTube function at all, given the mind-boggling quantities of video that are uploaded each minute. But these takedowns are happening completely outside even the (somewhat procedurally unbalanced) provision of the DMCA..
Hidden consequences and the public good
“Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed.”
Perfect 10, Inc. v. CCBill LLC 481 F.3d 751, 761 C.A.9 (Cal.),2007.
Is justice being done when automatic software makes mistakes like these? Normally, the only people who are usually aware of these mistaken takedowns are the original authors
whose work is taken down against their will, although high-profile or especially interesting ones will get some news coverage. But these takedowns are something that everyone should care about. Copyright claims are increasingly resulting in censorship, whether that censorship is deliberate –a topic for another Weather Report– or, in the case of the examples above, inadvertent. The underlying issue is the same, though. Members of the public aren’t being permitted to experience the full range of culture and discourse to which they should have access. But the bargain of copyrightis supposed to benefit the public and broader culture. Here, the public is holding up its end of the bargain, but is getting nothing, or less than nothing in return. How much attention would these takedowns be receiving if they hadn’t happened in high-profile public situations? Imagine how much material must get taken down without you realizing it. As more and more content gets placed on line, and remix culture continues to burgeon, Chilling Effects’ mission to archive, catalog and make transparent these take-down claims becomes all the more critical.