Viacom's YouTube Notices Ensnare Innocent Videos

After negotiations recently broke down between Viacom and YouTube, Viacom requested that 100,000 videos be taken down. Sounds fine, but apparently at least a fair number of the videos didn't infringe any Viacom copyrights. For example, a Harvard student recently received a notice from YouTube that a video of some friends and him chowing down at a local restaurant had been removed due to a notice from Viacom. He posted the notice. Even worse, people who provide totally original content to YouTube, such as Atrios and PoliticsTV, have found that 95% of their material has been removed.

This illustrates an issue with the notification proceedings. When there is rampant infringement and the burden is placed on the content owners to notify the ISP, then it makes more sense for the content provider to be overinclusive with notices. I have no idea how content providers such as Viacom search for infringing videos (whether it is 3 guy sitting in a room just combing through videos or if there is software that does it for them). But by being overinclusive, the content providers just shift the burden so that each little guy whose video has been removed wrongly will have to file a counter notice. At least YouTube helps matters by providing the proper procedure for a counternotification in the notice.

I still believe that the DMCA is ripe for redrafting, as was stated in my paper.