Why Google's Nascent Plan to Nab Unlicensed Music on YouTube Won't Fly

Last Updated Jul 6, 2010 4:16 PM EDT

Complaints about copyright infringement on YouTube keep Google (GOOG) busy -- just look at the copyright case Viacom (VIA) lost to the company. Aside from video, Google often hears from musicians and labels about people who upload videos using music without permission. Apparently Google has worked on a way to automatically block any unlicensed music use in video uploaded to a site like YouTube. Unfortunately, there are some conceptual flaws that might annoy both some users and rights owners.

Last week, a patent application that Google filed in February became public. The application, a continuation of a patent effort the company has had underway since 2006, is for a way to identify unlicensed audio content and prompt the user to either replace the music with something licensed, permanently mute the audio track, or select licensed music from a collection that YouTube would present.

The problem Google faces is that under the Digital Millennium Copyright Act, copyright owners can force Google to take down infringing videos, whether the whole video was copied without permission or just the soundtrack -- read that as music. Dealing with the complaints and the legally mandated back-and-forth with the user who posted the video is time consuming.

Under the idea in the patent application, Google would check each video as its uploaded and create a digital signature. Google's software would then compare that fingerprint to known music. In case of a match, Google would then offer the switch or ditch option.

Now for the flaws. By comparing the digital signatures, Google assumes that a match means a problem but has no way to automatically know whether someone had a license for the material's use in a video or claimed a legitimate fair use right to the material. In each case, resolving the question would require first asking the user whether the material was licensed and then either taking the person's assertion at face value or checking user-provided documentation or the owner company to verify. Fail to ask whether there is permission, and Google runs the risk of criticism over its presumption of guilt.

An automated check also provides a false sense of security. Audio rights are complex, often with a label owning a recording and words and music belonging to someone else. Claim an automated system and you set the expectation among rights owners that there is a way to check any infringement, including an unlicensed new recording of someone's material.

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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.