At a Progress & Freedom Foundation (PFF) panel discussion convened in the wake of Viacom’s $1 billion copyright infringement suit against YouTube, representatives of the programming and online industries clashed on where cost and other burdens for copyright enforcement should lie, as participants agreed that the current system of copyright enforcement under the Digital Millennium Copyright Act (DMCA) is flawed. Enacted in 1998, the DMCA provides Internet service providers (ISPs) and web hosts with “safe harbor” protections against copyright liability when infringing material is posted on the web by third parties. Although ISPs and web hosts are obligated to remove illegally posted material when notified by content owners, PFF panelists admitted it is unclear where burdens for copyright enforcement should lie. Describing responsibility over web site monitoring as a “major bone of contention” in the Viacom-YouTube case, a representative of Viacom charged that YouTube is capable of filtering copyrighted content. Noting that YouTube and sites like it already filter out spam videos, pornography, hate speech and other content that is deemed inappropriate, an attorney for Viacom questioned: “how is it different to filter spam videos on YouTube versus copyrighted material?” Noting that filtering activities are performed by employees who watch uploaded videos and not by technological means, a spokesman for News Corp.—the owner of the MySpace website—argued that the filtering of copyrighted works (as opposed to pornography or hate speech) is no easy task, as personnel assigned to that job “are not copyright lawyers.” Other panelists warned that programmers’ demands for filtering technology could prove especially burdensome for smaller ISPs that may be unable to afford it. Arguing for a standardized process, one consultant suggested that the Copyright Office create a database for “fingerprinting” video that would be made accessible to the online industry and into which programmers could deposit their content at the time of copyright registration.
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