EXPOSED: How the legislative history of the Digital Millennium Copyright Act undercuts YouTube’s claims

Volume 119, No. 5May, 2019

Maria Schneider

Warning: this article is technical, but it contains original research that could be used to help undercut YouTube’s claims of safe harbor. For a more general introduction to the issue, see Maria Schneider’s story here.

As you can read in my article linked above, YouTube claims that its Content ID system is not a “standard technical measure” and therefore can’t be used by artists to block piracy. YouTube claims that a “standard” must be something agreed to by the entire industry. Of course, YouTube knows well that this particular industry will never be able to agree on a standard, since it is comprised of market segments like ISPs, content creators, and worldwide digital publishers (like YouTube) that have diametrically opposed interests.  Even getting the “industry” to the table, let alone in agreement, is difficult.  So YouTube goes to bed at night with the comfort of believing there will never be an “industry standard.”  And in fact, 20 years after the passage of the Digital Millennium Copyright Act, there hasn’t been any attempt at a “standards process” to come up with an standard technical measure, and there won’t be.

But a close reading of the legislative history of the Digital Millennium Copyright Act shows something that not many have discussed, but is possibly YouTube’s undoing. Here’s language by Senator Orrin Hatch about the “standard technical measure” provision that YouTube is hiding behind:

Subsection (h)(1)(B) is explicitly limited to “standard technical measures” that have been developed pursuant to a broad consensus of both copyright owners and service providers in an open, fair, voluntary, multi-industry standards process. The Committee anticipates that these provisions could be developed both in recognized open standards bodies or in ad hoc groups, as long as the process used is open, fair, voluntary, and multi-industry and the measures developed otherwise conform to the requirements of the definition of standard technical measures set forth in paragraph (h)(2). A number of recognized open standards bodies have substantial experience with Internet issues. The Committee also notes that an ad-hoc approach has been successful in developing standards in other contexts, such as the process that has developed copy protection technology for use in connection with DVD.

Thus, the legislative history specifically described how a technology developed solely by one company, and then slowly adapted by many others, can qualify as an “standard technical measure.” That “standard process” for DVDs that Senator Hatch highlighted is known as “Content Scramble System,” or CSS, was originally developed in a fashion very similar to Content ID.

CSS was a technical system initially developed solely by Matsushita to combat piracy. The characteristics of CSS are as follows:

  1. CSS is a technology pioneered by one company, namely Matsushita, to combat piracy.
  2. CSS technology was licensed and adapted by Matsushita over a period of years to a very large number of major corporations, first to Toshiba, and then to the other major companies like Sony, Panasonic, IBM, Time Warner, Disney, etc.
  3. CSS slowly became the de facto an industry standard technology for combatting piracy.

Just like Matsushita and its CSS, an innovative American company, Audible Magic, created Content ID expressly for the purpose of stopping piracy. In fact, YouTube itself: a) Originally licensed Audible Magic’s Content ID technology; b) Used Audible Magic’s brand name of Content ID; and c) Developed its own in-house souped-up version of Audible Magic’s intellectual property. Most major internet media distribution companies (including Facebook, SoundCloud, Veoh, Vimeo, Viacom, DailyMotion and  AOL) all use Audible Magic’s Content ID to identify and stop piracy.

However, as I wrote earlier, YouTube is utilizing a content recognition technology as means to do the exact opposite of what Congress (and Audible Magic) had intended. That is, instead of allowing copyright owners like me to use it to block piracy, YouTube is leveraging that standard technology to turn infringement into a money-maker, first and foremost for itself. Even more egregiously, YouTube is denying the majority of small musician/copyright owners any access to the technology, if their wish is to block their copyrighted full-track or album property from illegal uploading. Not every musician wants to take part in YouTube’s self-serving scheme of monetizing infringement.

Independent musicians who own their own copyrights and have not signed deals with labels/publishers connected to YouTube’s Content ID, are in desperate need of the Content ID lifeline to protect their works (the very meaning of a standard technical measure under the DMCA). But rather than throw us the line it has already in hand, YouTube treats its Content ID like an exclusive yacht club, prohibiting copyright owners like myself from using Content ID to block illegal uploads of our work.

To recap, here’s why Audible Magic’s Content ID clearly qualifies as a standard technical measure: Audible Magic’s Content ID is essentially a digital fingerprinting technology with the following three characteristics:

  1. It is a technology pioneered by one company, namely Audible Magic.
  2. The technology was licensed and adapted over a period of years by a large number of major corporations, and licensed even by YouTube itself in 2006.
  3. It has slowly become an industry standard technology for blocking illegal uploads.

YouTube tries hard to differentiate its Content ID system as an expensive, custom software system, but the basic concept of digital fingerprinting and Content ID is essentially originated by and developed by the company Audible Magic. The fact that YouTube has now tacked on its own capabilities for monetization does not change the fact that the basic digital fingerprint backbone to this technology is a “standard technical measure” developed by Audible Magic already back in 1999. The “expensive part” that YouTube boasts about having invested in is not the basic blocking technology but rather the bells and whistles YouTube tacked onto Content ID for monetization purposes, a tool that reaps billions for itself first and foremost.

YouTube knows that if basic digital fingerprinting (for which Audible Magic coined the phrase Content ID) is found to be a “standard technical measure” under the DMCA, YouTube will be required under the law to give all content creators access to it on a “non-discriminatory basis” for the purpose of blocking uploads. It would largely end the outrageous “whack-a-mole” reality many music creators, including myself, have testified to before Congress. But right now, as stated above, YouTube only makes it available on a highly selective and subjective basis, pursuant to secret terms, which are skewed to those who monetize with it. But by tacking on a few bells and whistles (even expensive ones), YouTube can’t avoid the intent of Congress: any basic anti-piracy technology everyone else uses cannot be withheld from the majority of copyright owners on a discriminatory basis if that company hopes to benefit from the safe harbor.

Senator Patrick Leahy added some important additional comments to the legislative history back in 1998. He said the following:

We must make sure that our copyright laws protect the intellectual property rights of creative works available online in ways that promote the use of the Internet, both by content providers and users. The future growth of computer networks like the Internet and of digital, electronic communications requires it. Otherwise, owners of intellectual property will be unwilling to put their material online.

It is clear Congress wanted to empower creators to control their own works, not to ensure they’d be preempted by the world’s most powerful corporation.

And Senator Leahy went even further, emphasizing that creators have to have the right “incentives” to want to disseminate their works online:

The DMCA is a product of the Senate Judiciary Committee’s recognition that ours is a time of unprecedented challenge to copyright protection. Historically, the government’s role has been to encourage creativity and innovation by protecting copyrights that create incentives for the dissemination to the public of new works and forms of expression. That is the tradition which I have sought to honor and which I intend to continue to promote.

Thus, the senators who put together the DMCA left nothing to the imagination: they wanted standard technologies that could stop piracy in the way digital fingerprinting does to be considered a standard technical measure. They most assuredly would demand that the most powerful music publisher in the world, or any user-generated content sites would make that basic technology available to an independent music creator like myself rather than stiff-arming me and refusing me access to it unless I allow it to be made into a money-maker for YouTube itself.