Little guys getting squashed in battle of two Goliaths

Wired on Friday: Balcony TV is one of the most popular Irish internet TV shows around, winning best music website at the 2007 Irish Digital Media Awards, writes Danny O'Brien.

It spreads word of its existence online through small video slots on YouTube, Google's video-sharing service. You can spend a happy hour or so clicking through their collection of more than 200 videos, which feature up-and-coming bands playing on the three presenters' cramped balcony overlooking Dame Street in Dublin.

At least you could, until YouTube abruptly took down all of their videos from the website. For weeks, Balcony TV struggled to regain control of its archives and obtain a response from YouTube for their sudden ejection. And they are not alone. There has been a lot of these disappearances recently, not least because YouTube has been at the receiving end of 100,000 claims of copyright infringement by Viacom, the media behemoth that owns everything from SpongeBob SquarePants to MTV.

YouTube's response has been swift, and carefully delimited by American (and Irish) law: if it gets a notice of copyright infringement, it takes down the offending content. Viacom knew this when it sent out its 100,000 requests. It must have known that mistakes would be made and some of YouTube's innocent users would be caught up in its dragnet.

When called to task by companies like Viacom, sites like YouTube can maintain limited legal immunity if they take down the alleged infringers the moment a copyright holder complains. But if Viacom makes a mistake, sites like YouTube are also freed from liability from the little guys like Balcony TV, who abruptly find their video (or music, or webpage) vanishing - that is, they are freed from liability as long as they put the content back within a fortnight of the end user asking them to restore it. This YouTube did, after various miscommunications, with the Balcony TV. If Viacom wants to take it further, it has to take the end user to court directly.

This "notice-and-take-down" system, first adopted in the US in 1998, has proven to be a less than perfect solution for all sides. There is an obvious disparity in power between companies like Viacom and groups like Balcony TV.

YouTube has to worry about Viacom, but it doesn't need to care about legal suits from its users, because they waive that right in their licence agreement. So middlemen like YouTube will take down content first, and often take their time restoring it, confident in the knowledge that there's little their ex-customers can do - compared to what Viacom could do.

Notice and take down has also led to deliberate misuse. Earlier last year, an internet personality named Michael Crook sought to silence critics by using take-down notices to remove clips of him on Fox News - despite having no copyright for the images. And last week, comedian Carlos Mencia sought to remove videos of an argument with fellow comedian Joe Rogan by erroneously claiming he owned copyright of the clips.

Not all countries use the American model. Canada has a "notice-and-notice" system, whereby YouTube would only be obliged to pass on the warning of imminent legal action from Viacom. That, it transpires, is sufficient to scare off any genuine infringer, while maintaining any content that Viacom mistakenly identified. Continuing infringers can then be taken to court. Under this system, Balcony TV would have received a letter, but not had their content disappear.

Rights-holders like Viacom clearly don't like either the notice-and-take-down system or the notice-and-notice system, because of the "whack-a-mole" problem of widespread copyright infringement. As soon as you take down one infringer, another appears. Sure enough, even as YouTube took down the 100,000 alleged infringers, more quickly appeared.

Since the days of Napster, companies like Viacom have consistently argued that it should be the provider's responsibility to take down anyone who uses their service for infringing purposes.

But it would be an impossible task for YouTube to police all copyrighted work.

The clips on YouTube are low quality and limited to 10 minutes. What minimal commercial value exists in these videos is being mined by YouTube, and Viacom should cut them a deal rather than shut them down. For now, though, it appears that Viacom is happier stamping out infringement than authorising and profiting from it.

But it's not really YouTube or Viacom who lose out: it's the little guys like Balcony TV, who can get easily squashed in these Goliath versus Goliath battles.