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ARTICLES AND THINKPIECES

CAN YOU GET IN TROUBLE FOR DOING NOTHING?

I've been reading the discussions on the decision just the other day in the litigation between GEMA and YouTube, and it echoes a challenge we addressed for a client a number of years ago. I'll keep the description generic for obvious reasons.

In 2005, we worked with a company that had developed an algorithm that enabled it to automate the capture of certain types of intellectual property. The company then used the IP to perform a service. This service was extremely successful for the company and its clients. The downside? The algorithm failed to distinguish between intellectual property that was up for grabs and IP that was already owned by another company. The result? Claims, angry letters, and lawsuits threatened to bring down our client.

We came in and looked at the situation. After creating a claims handling process, we grappled with the idea of creating a filter, asking whether or not the client had a responsibility to filter the data, or, if the IP owners had the responsibility to monitor. We knew that, if they implemented a filter, they had better do it right, because, once it is clear that a filter can work, a court would likely rule that they had the obligation to use it.

Ultimately, repeat claims were occurring – the client would take down a particular bit of IP and something very similar would pop back up without human intervention. This was really angering claimants. We recommended that they create a filter that would incorporate IP similar to the IP on which claims had already been made. It took a bit of effort, but, ultimately, they incorporated the filter into the algorithm. The result? Claims dropped, hostilities subsided, and, with a bit more effort, their successful business continued unabated.

Why am I bringing this up? Because this is exactly what YouTube is facing today. One issue in the GEMA case is, once YouTube takes down a music video, what obligation do they have to prevent that same video from popping up again? The court did look at a filter YouTube has in its toolkit to recognize a specific recording (think Shazam), and has ruled that, because they have it, they had better use it. They even have to take it one step further. Because the software can only recognize the same file, it is of no use in recognizing, for example, a live version of the same song. The German court has ruled that they need to create a filtering system that will capture those videos as well. That will be more difficult, but, here, at least one court has created an affirmative obligation for YouTube to actively monitor its uploads and not just leave it to the IP owners to monitor for them.

This court process is not over, as the decision does not come from the highest court in the land, but YouTube and other carriers will see this policy to exercise care over their systems and the IP that is affected by it, again. As we saw it in 2005, so it is again in 2012. More on this as it develops . . .