YouTube runs a reform school for copyright violations

May 30, 2013: 12:03 PM ET

And it's a little like traffic school for the Internet.

By David A. Kaplan

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Posting a copyright protected video gives YouTube users a strike. Three strikes, you're out.

FORTUNE -- Bruce Carlisle is a 55-year-old entrepreneur in the Bay Area. He's the founder of Conference Hound, a search platform for people attending business conferences. Last October, he was attending a big Bob Dylan concert in downtown San Francisco. As the show wound down, Dylan sang "Like A Rolling Stone." Carlisle impulsively took out his iPhone and recorded 30 seconds of it, which he uploaded the next day on YouTube to impress his friends. Uh-oh! Three weeks later, he got an email from YouTube declaring that he had violated Dylan's copyright of the song. In place of the Dylan excerpt on YouTube, the ominous THIS VIDEO HAS BEEN REJECTED appeared, along with Carlisle's face, which Carlisle says YouTube (which is owned by Google) pulled from his from his Google+ account. Carlisle's reaction was mostly incredulous. He says the intent of his brief "non-commercial" clip "wasn't to compete with the original in any way."

Carlisle then learned that if he wanted to upload any more videos of any kind to YouTube -- an important part of his conference business -- he would have to attend "YouTube Copyright School." At this online reformatory of the digital universe, first-time reprobates have to watch a four-minute goofily animated tutorial on federal copyright law and then pass a quiz to prove they were paying attention. Assuming that they pass, their first "strike" is erased. But after a total of three strikes, the penalty is draconian: All of your uploaded videos are removed from YouTube, and you're banned "for life" from uploading any more. Wicked infringer, off with your head!

Copyright School has been open for three years, but unless you're one of the more than 1 million offenders who've had to attend, you probably don't know about it. Of those who have watched the video and offered either a thumbs-up or thumbs-down, 80% go thumbs-down. The tutorial, starring Russell the pirate sea otter and Lumpy the moose provides such counsel as "Uploading someone else's content without permission could get you into a l-o-t of trouble;" there are also the obligatory qualifiers about how the law does permit limited "fair use" of copyrighted material, but they're so general and read at such a breakneck pace that not even Oliver Wendell Moose could comprehend it.

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The actual multiple-choice quiz itself is fairly easy, as any pirate sea otter knows that (a) "videos," (c) "photographs" and (d) "musical works" are protected by copyright statute, whereas (b) "people" are not. And apparently, it's impossible to fail: If you get too many answers wrong, you just get another set of questions. YouTube has a new animated tutorial in the works that will try to spell out in more detail how its users can abide by copyright law.

Google (GOOG) says it launched Copyright School to better inform its users, which in turn dually protected their freedom to express themselves along with the rights of copyright owners. "It's ultimately your responsibility to know whether you possess the rights for a particular piece of content before uploading it to YouTube," states a post on the Official YouTube Blog. But "because copyright law is complicated, education is critical to ensure our users understand the rules." An educated user base is of course laudable. But it is also likely that Google created Copyright School because the company faces ongoing condemnation from lawmakers, as well as litigation from the entertainment industry, for not doing enough to combat copyright infringement -- be it unabashed piracy or incidental violations like Carlisle's. YouTube surely has to be militant in its efforts to obey copyright law: Its hundreds of millions of users upload an average of 72 hours of new video every minute.

One lawsuit may have focused Google's attention. Since 2007, it and Viacom (VIA) have been in federal court in Manhattan fighting over copyright. Seeking billions of dollars in damages, Viacom's lawsuit against Google claims YouTube has engaged in "brazen" infringement by allowing unauthorized uploads of Viacom-owned video. In its defense, Google says the Digital Millennium Copyright Act (DMCA) provides YouTube a "safe harbor" as long as YouTube removed infringing content when Viacom gave it notice. As recently as mid-April, the judge in the case sided with Google.

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Passed in 1998, the DCMA was an attempt by Congress to shield online service providers from copyright liability as long as the providers responded to takedown requests from rightful owners of copyrighted material that was uploaded without permission. YouTube, for example, complied with the DCMA by taking down Carlisle's video excerpt after hearing from Dylan. The copyright regime that DCMA established has been criticized from both sides: Rights-holders say it doesn't place sufficient responsibility on hosting sites like YouTube to police their content aggressively, especially if hosting sites turn a blind eye to piracy; users like Carlisle say the DCMA prevents ordinary folks from sharing harmless, non-commercial slices-of-life with their friends.

There is a certain irony in Google looking out for the interests of those who own copyrights. Because outside the realm of YouTube, Google has been on the other side of copyright disputes, arguing for a more liberal interpretation of what constitutes "fair use." The popular Google News -- as well as many other aggregators that have nothing to do with Google -- assemble on a single website headlines and leads of stories from other copyrighted publications. Many of these publications now license their content to aggregators, thereby obviating any copyright infringement issue. But to the extent no such license exists, the question of whether aggregation is legal remains.

For his part, Carlisle made it out of Copyright School and is back in YouTube's good graces. It's a good bet that at the next concert he attends any video he records won't be uploaded to YouTube so quickly. But he remains bemused over his whole brush with digital ignominy. "They shamed me!" he says. Well, yes, but maybe that's the point of being sent to Copyright School.

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