Stay Down Provision Will Not “Entrench” YouTube Dominance

This is an argument that’s been around for quite a while.  I first stumbled upon it in 2013, found it again in the recently published report by Berkeley and Columbia researchers, and I understand it came up again in round-table discussions held last week at the 9th Circuit Court of Appeals regarding Section 512 of the DMCA.  The premise is this:  that if rights holders demand a takedown provision, and this in turn requires technological measures to achieve, then such measures will entrench the dominant market positions of sites like YouTube because only giant companies will be able to afford to deploy these technologies.  It sounds like a reasonable concern as long as we ignore the realities of the networked economy.

YT GorillaYouTube’s dominance is created by market forces and the general tendency of a networked economy to foster monopolies.  As discussed several times on this blog, and in numerous articles from multiple other sources, it’s a natural function of the digital market to shrink competition in certain lines of business.  Once a platform acheives critical mass and offers a service like social video, there is not only no particular need for consumers to seek a competitior, there are clear disadvanages to choosing a competitor.  For instance, one can host video on a service like Vimeo, which offers many great features, but if one needs to drive traffic and improve SEO, there really is no substitute for YouTube, especially because of the way in which the platform is intertwined with Google’s dominant position in global search.

These are market factors that have no direct relationship with provisions like YouTube’s Content ID or other copyright compliance (or lack thereof) policies and technical measures.  If anything, it is astonishing that self-proclaimed public advocates can pretend to be criticizing YouTube in this regard when it is that company’s bad-faith application of DMCA in the first place which enabled it to gain the monopoly position it now enjoys. YouTube brazenly acquired its marketshare with an infringe-now/sort-it-out-later strategy; and now its representatives, in the guise of defending competition, have the nerve to suggest that technical measures to achieve stay down will only “entrench” this ill-gotten dominance. So, if we’re going to debate any technical measures that may be required for a YouTube-size OSP to fulfill a stay down provision, that discussion should only proceed based on an honest appraisal as to why certain OSPs are already monopolistic and may remain so regardless of any new requirements to protect rights holders.

Additionally—and I’ve raised this issue before—we saw in BMG v COX that new technical measures are not the only approach to acheiving better compliance with the intent of DMCA safe harbor provisions.  As the law stands today, in order to maintain the safe harbor shield, an OSP must meet certain condions, and among these is the maintenance of a policy whereby a repeat infringer will ultimately lose his or her account with the OSP.  But ever since passage of the DMCA, OSPs, bloggers, pundits, and organizations like the EFF have been playing a semantic shell game with rhetoric like What is a repeat infringer? And while it is true that the DMCA does not specify the exact terms of a repeat infringer policy, the details revealed in BMG v COX demonstrate just how absurdly “good faith” can be abused by a service provider.

As described in a previous post, COX’s “repeat infringer” policy was what we might call Fourteen Strikes and You Get a Very Stern Warning.  As a result of this clearly insufficient policy, the judge in the case rather sternly rejected COX’s initial safe harbor defense and allowed the trial to proceed, in which BMG ultimately prevailed.  The reason I bring up COX is that the failure of DMCA to protect rights holders in this instance does not implicate new technical measures at all. Instead, COX suggests that the language of the law is too broad and can, therefore, be willfully misinterpreted by an OSP as to undermine the intent of DMCA.  BMG had to go to court to demonstrate that COX was not anywhere close to meeting its obligations to provisions that were meant to be a compromise measure designed to avoid litigation in the first place.  COX itself does not concern a stay down provision for an individual file, but the repeat-infringer issue, it seems, may be viewed as a parallel subject for proposed statutory revision.

And so the circumstance we have now—especially the story that leaks out into the public dialogue—is a double-lie.  Part one is that new technological measures are the only way to mitigate repeat infringement of individual files or by individual users; and part two is that these technical measures can only “entrench” monopoly OSPs despite all evidence that these monopolies may persist due to market forces.  As policy-makers consider revision of Section 512, I believe it is worth noting the fundamental dishonesty of these arguments and to ask why, after so many years, they remain lead talking points of the internet industry.

© 2016, David Newhoff. All rights reserved.

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