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Videos generated by individuals are a social phenomenon that has not only affected social networking, but organizations as well.Melcrum, a research firm, reports that while much of the interest in social media has centered on the adoption of blogging as a business tool for communicating with customers and staff, online video is, in fact, the number one application. They point out that corporations have taken note of the popularity of sites like MySpace, YouTube and Bebo and that they are beginning to integrate the same functionality and networking tools within their corporate intranets. In their 2007 research report, Melcrum found that the two most important applications for internal user-generated video are identified by organizations as improved employee engagement and improved internal collaboration. The video medium is widely accepted due to its interactivity and its ability to treat content creatively.
YouTube, along with blogs and online networking sites MySpace and Facebook, have helped drive video-sharing activity. The problem is that many of these videos frequently contain content that is protected by copyright. The use of copyrighted material without permission can lead to litigation – for the individual who posted it, the organization where they work, the site that hosted the material or any combination of these.
Two years ago, illegal use of professionally created video was rampant on the Web, particularly on video sharing sites such as YouTube. Among those most visibly undercut was NBC Universal, which asked YouTube to take down the infamous "Lazy Sunday" video from Saturday Night Live, after 5 million unauthorized viewings, and Viacom, which filed a $1 billion suit against YouTube parent Google to stop illicit publishing of their content. Now, a year after YouTube introduced its Video Identification tool to stem misuse, automated systems are being used to identify and protect professionally produced content.
Video-related issues are routinely in the press and many times matters relate to social networking and legal concerns. For example, MySpace plans to adopt a new video-identifying technology that will attempt to resolve copyright issues from some of the video clips users upload to the social-networking sites. The technology, from a third-party company called Auditude, is in essence a form of fingerprinting technology that scans videos for professional – and often copyrighted – content. Auditude's system indexes uploaded videos against more than one billion minutes of content from its library.
Industry executives say such fingerprinting technology is key to resolving thorny copyright battles between media and technology companies over online video. Viacom has employed its own similar technology, and its use led to a $1 billion suit against Google's YouTube, accusing it of massive intentional copyright infringement and demanding that YouTube remove 100,000 infringing video clips. Viacom claimed that YouTube failed to prevent its users from posting pirated material to the site.
Risk and Video Content
Videos created by employees and customers are posted on websites that discuss an organization’s product, services or processes. For example, some of the distributed user-generated video content on video-sharing sites is commentary on the world’s leading brands, which can be either positive or negative. This activity is confirmed by a survey of corporate use of social networking applications conducted by Melcrum. They found that while there is widespread enthusiasm for social media in the corporate world, 45% of respondents agreed that employees or customers discussing their organization or brands online posed a significant risk to its reputation.
An illustration of the potential liability issues that user-generated videos can create for organizations is further evidenced by a recent case in Great Britain where a supermarket employee posted a video on a social networking site of one worker hitting another worker. Because the clip revealed the internal activity of the supermarket, the employer decided to fire the employee. The employee then sued the supermarket’s executives, won a claim for unfair dismissal and was awarded compensatory damages.
On YouTube, one can find videos about corporations and their products, many of which are frankly unflattering. For example:
- A&P unceremoniously sacked two brothers for using the company facilities to film a faux-gangsta rap video (A&P is also suing them for $1 million).
- A former AIG employee has posted a video on YouTube that “slams the company.”
- There is a news report video posted on YouTube where McDonald’s employees were frightened by a dwarf’s appearance.
- A video was posted on YouTube of a worker celebrating his birthday by taking a bath in the kitchen sink of a Burger King. It got employees in trouble with the company and the company in trouble with its customers and the local health commissioner.
Copyright infringement is one of the most immediate concerns for organizations. When an employee infringes copyrights, the employer may be held liable under two theories: contributory and vicarious infringement. Contributory infringement requires the employer have knowledge of the infringement and have made material contribution to the infringement. Actual knowledge, however, is not always necessary. Willful blindness is knowledge, in copyright law (where indeed it may be enough that the defendant should have known of the direct infringement). Thus, the fact that an employer is unaware of the illegal conduct of its employee does not fully preclude their liability. In addition, the second theory, vicarious infringement, contains no knowledge requirement, but only requires that the employer receive a direct financial benefit and have a right and ability to supervise the infringers. In the employment setting, the second element is virtually always found, leaving the question of financial benefit to control the inquiry.
Thus, unauthorized use of any copyrighted material may give rise to employer liability, especially when:
- The employer enjoys a benefit because of the employee’s infringement,
- The copyrighted material is shared using company time and equipment, and
- The employer has taken no steps to prevent such infringement and has turned a blind eye to the infringing activities.
When a third party brings charges for copyright infringement, which carries hefty fines of up to $150,000 per violation, the employer becomes a more profitable target than the employee because of the depth of employer pockets.
Employer liability extends beyond copyright infringement into several other areas. Defamatory or libelous statements made by employees in Internet video postings may give rise to employer liability. Employers may also be liable to their employees for claims of sexual harassment or employment discrimination when other employees create a hostile work environment by downloading and distributing inappropriate video content.
Liability for the firm cannot only come directly from employee actions, but from actions taken by others. For example, as part of Viacom's $1 billion copyright suit against Google's YouTube, a judge ordered the video-sharing site to disclose records, such as IP addresses and usernames. Google was also supposed to turn over records that included the viewing and uploading histories of YouTube employees, according to the sources.
Content liability requires organizations to monitor video content (especially user-generated content) that may include any material that violates legal (or ethical) standards, as defined by the organization standards of behavior, or by copyright or other laws. Firms need to monitor content to be certain that the videos posted and viewed do not include content that was not created by the poster and which may include clips of television shows, films, or professional training videos whose copyright belongs to other corporations. This issue is highlighted by the lawsuit that Viacom launched against YouTube and its owner Google over copyright infringing videos hosted by the site. This case focuses on the “safe harbor” protections for Internet service providers (ISPs) and it may influence other user-generated content sites, including enterprise sites. The legal action tests the limits the U.S. Digital Millennium Copyright Act (DCMA) of 1998. The Act creates a safe harbor for online service providers against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. Similar protections exist in European laws. Safe harbor was designed to protect companies from having to monitor the activity of every Internet user, something that was recognized as impractical. Companies do not have to prevent illegal use of their services proactively, but when properly notified they must “expeditiously” remove or disable access to infringing material.
Videos shared online have demonstrated that it is a rich medium for sharing propaganda, misinformation, spam and copyrighted material. Hence, user-generated videos present a challenging new and relevant frontier for business intelligence (BI) activities because firms need to monitor what employees and other constituencies are saying about them. Therefore, BI needs to explore means by which to identify video-based content created by employees that may expose the firm to content liability.
In next month's article, I will examine video search engines and look at how they can be employed to help provide business intelligence on user-generated video content developed within a firm.