Big Brother Is Watching YouTube: How My Dancing Kid Joined the Copyright Wars

A few months ago, my wife took a 78-second video of my 3-year-old son, Jacob, at the Garden State Discovery Museum in Cherry Hill, N.J., as he was dancing his heart out to Eye of the Tiger by Survivor, which was playing in the background. At the time, Marci didn't think the little clip she shot on her Flip Camera would interest anyone other than our friends, family and perhaps a few fans of the rock group who were gluttons for punishment. She couldn't have been more wrong.

Marci, who hadn't even named the video, recently got an email from YouTube saying it had attracted the notice of the Google-owned (GOOG) website for all the wrong reasons. Their cryptic message read as follows:

Oddly enough, the Content ID Matches link had nothing there. That left me even more perplexed: I had no idea what YouTube was talking about until spokeswoman Victoria Grand explained it for me. Copyright holders provide the company with Content IDs for material such as songs, and every video uploaded to YouTube is scanned against the database to see if it contains copyrighted material that matches one of the digital fingerprints. If it does, owners of the copyrighted material have a range of options, from asking the site to remove the video to selling ads around it, or just monitoring its popularity.

"In many cases, however, the label elects to leave it up and to reap whatever benefits the video may avail them to, such as income from advertising or promotional value," said Pauline Stack, a spokeswoman for ASCAP, in an email.

Filtering Software Stumbles Over Fair Use

According to Jonathan Band, an Internet industry lobbyist, my situation is not unique.

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"I don't deny that it's a little strange," he says in an interview. "It's happening more frequently."

On the bright side, Band noted that our video is still on YouTube and that Sony (SNE) hasn't sued me. I'm not terribly worried about a Google swat team knocking on my door either. Still, you'd expect one of the savviest and richest companies companies in history would be able to figure out a better way to separate the innocent videos from the guilty ones. Unfortunately, thanks to the complexities of copyright law, that's not simple.

Sony Music wouldn't say what it thought of my son's video. YouTube, which is expected to generate $450 million in revenue, wouldn't either. I could care less if Sony considers my son the next Justin Beiber (though as his father, I can assure the teen heartthrob that my son is no threat to his career). However, it annoys me to to have my family treated as if we did something wrong when clearly, we didn't. Just because a video contains copyrighted material does not mean that it infringes on it. Thanks to what is called the "fair use" doctrine, individuals have a reasonably wide latitude in this respect: Just as bloggers are able to quote from The New York Times, parents should be able to video their children without worrying about what music is playing in the background, right?

Wrong.

YouTube's Still Flinching From Viacom Suit

David Sohn, senior policy counsel at the Center for Democracy and Technology, says he's confident that my son's video is legally permissible, but he couldn't be positive because determining "fair use" is extraordinarily complicated -- or as lawyers say "fact specific." Of course, YouTube has long been a haven for copyright infringers, and it needs to crack down on illegal content to stay in compliance with the Digital Millennium Copyright Act. In 2006, Viacom Inc. (VIA), parent of MTV Networks and Comedy Central, sued Google and YouTube for $1 billion, alleging that the video site allowed users to illegally post clips of its hit programs such as The Daily Show. A federal judge sided with Google in June, a decision the search engine said at the time was "an important victory not just for us, but also for the billions of people around the world who use the Web to communicate and share experiences with each other." New York-based Viacom has appealed the decision, and in the meantime, YouTube doesn't seem to be letting its guard down.

"YouTube is not required to run the kind of system that they are running," says Sohn, adding that doing so may help the site assure content owners that it's cracking down on infringement and fight future legal challenges. Given the shear volume of videos being uploaded to the site, YouTube neither has the time nor the money to have employees screen them all, he says.

The downside, Sohn notes, is that the automated system doesn't distinguish between innocuous uses of copyrighted material (such as my son's video) and more blatant stealing. My family is luckier than Stephanie Lenz of Gallitzin, Pa., who received a "takedown notice" in 2007 from Universal Music after the company saw her YouTube video of her son dancing to Prince's Let's Go Crazy. YouTube pulled the video, but she challenged the takedown in court and won. The case is still on appeal, and she's counter-suing for damages.

A Songwriter on His Side

Lucky for me, I found an ally in Jim Peterik, one of the co-writers of Eye of the Tiger.

"I love this kind of thing in association with my songs," he writes in an email. "Speaking for myself, there are some judgment calls as to what constitutes a publishing violation. I tend to be very liberal when it is something done in the right spirit of the song. It is only good for all concerned. ... Who wouldn't be thrilled? If someone was misusing the song for monetary motives that's another story."

Grand, the YouTube spokeswoman, says it's against company policy to discuss specific videos. She added that I could fill out a notification form for the site if I believe my video passes legal muster. Sony must not be too worried though, because now there's a small ad below the video: Viewers of the clip can instantly purchase Eye of the Tiger through Amazon (AMZN) or iTunes (AAPL) with a click of the mouse.

Too bad my son isn't getting a commission from Sony, because his birthday is coming up at the end of the month. When he gets older, I'll use this episode to teach him about one of the golden rules of capitalism: Those who have the gold make the rules.