I originally wrote this column over at Wired back on March 13 about my experience with patents at Yahoo, but forgot to republish it here on Waxy.org in my permanent archive.
This article received a bigger response, hands-down, than anything I've written for Wired so far, resting at the top of Techmeme for a full day, with widespread coverage from The Telegraph, The Verge, Fox News, and Business Insider. (That's a good signal you've written something notable: when competing tech magazines start linking to your work.)
Almost two weeks later, I'm still angry but happy that the column ignited such a powerful discussion about the patent issue. I'm especially pleased that "weaponizing patents" is entering the lexicon; articles like these use the phrase without mentioning me at all. Awesome.
Anyway, if you hadn't seen it, I hope you enjoy it.
While most of the tech world was partying at South by Southwest in Austin yesterday, Yahoo announced it was filing a lawsuit against Facebook for allegedly infringing on 10 patents from their 1,000+ patent warehouse.
I'm no fan of Facebook, but this is a deplorable move. It's nothing less than extortion, expertly timed during the SEC-mandated quiet period before Facebook's IPO. It's an attack on invention and the hacker ethic.
In the interest of full disclosure, I have a small supporting role in this story. None of the patents I co-invented are cited in the Yahoo complaint, but a handful of applications I worked on with Yahoo were granted patents, weaponized now to use against people like me.
Here's how the process worked, in my case:
In 2005, Yahoo acquired Upcoming.org, the collaborative events calendar I'd launched two years before.
Back then, the Web 1.0 behemoth seemed on the verge of turning things around. A series of smart moves — high-profile hires, the Oddpost and Flickr acquisitions, the launch of the Yahoo! Developer Network, and their Research Lab — was breathing new life into things. Two months after we were acquired, Del.icio.us and Webjay joined us in the Yahoo fold.
After we moved in, we were asked to file patents for anything and everything we'd invented while working on Upcoming.org. Every Yahoo employee was encouraged to participate in their "Patent Incentive Program," with sizable bonuses issued to everyone who took the time to apply.
Now, I've always hated the idea of software patents. But Yahoo assured us that their patent portfolio was a precautionary measure, to defend against patent trolls and others who might try to attack Yahoo with their own holdings. It was a cold war, stockpiling patents instead of nuclear arms, and every company in the valley had a bunker full of them.
Against my better judgement, I sat in a conference room with my co-founders and a couple of patent attorneys and told them what we'd created. They took notes and created nonsensical documents that I still can't make sense of. In all, I helped Yahoo file eight patent applications.
Years after I left I discovered to my dismay that four of them were granted by the U.S. Patent and Trade Office.
I thought I was giving them a shield, but turns out I gave them a missile with my name permanently engraved on it.
I was naive. Even if the original intention was truly defensive, a patent portfolio can easily change hands, and a company can even more easily change its mind. Since I left in 2007, Yahoo has had three CEOs and a board overhaul.
The scary part is that even the most innocuous patent can be used to crush another's creativity. One of the patents I co-invented is so abstract, it could not only cover Facebook's News Feed, but virtually any activity feed. It puts into very sharp focus the trouble with software patents: Purposefully vague wording invites broad interpretation.
In their complaint, Yahoo alleges that Facebook's News Feed violates "Dynamic page generator," a patent filed in 1997 by their former CTO related to the launch of My Yahoo, one of the first personalized websites. Every web application, from Twitter to Pinterest, could be said to violate this patent. This is chaos.
Software patents should be abolished, plain and simple. Software is already covered by copyright, making patent protection unnecessary.
Ask any programmer — developing software is as creative and unique as writing poetry.
Yahoo's lawsuit against Facebook is an insult to the talented engineers who filed patents with the understanding they wouldn't be used for evil. Betraying that trust won't be forgotten, but I doubt it matters anymore. Nobody I know wants to work for a company like that.
I'm embarrassed by the patents I filed, but I've learned from my mistake. I'll never file a software patent again, and I urge you to do the same.
For years, Yahoo was mostly harmless. Management foibles and executive shuffles only hurt shareholders and employee morale. But in the last few years, the company's incompetence has begun to hurt the rest of us. First, with the wholesale destruction of internet history, and now by attacking younger, smarter companies.
Yahoo tried and failed, over and over again, to build a social network that people would love and use. Unable to innovate, Yahoo is falling back to the last resort of a desperate, dying company: litigation as a business model.
That it's Yahoo makes it even sadder. The complaint isn't really wrong when it asserts that: "For much of the technology upon which Facebook is based, Yahoo! got there first."
But being first with something generic that would have been invented by someone (like the wheel) — as opposed to something few could have imagined (like the Segway) — is a big difference.
Ask any start-up CEO — execution is everything.
As the fictionalized Mark Zuckerberg says in The Social Network, "If you guys were the inventors of Facebook, you'd have invented Facebook."
Last Friday, a YouTube user named eeplox posted a question to the support forums, regarding a copyright complaint on one of his videos. YouTube's automated Content ID system flagged a video of him foraging a salad in a field, claiming the background music matched a composition licensed by Rumblefish, a music licensing firm in Portland, Oregon.
The only problem? There is no music in the video; only bird calls and other sounds of nature.
Naturally, he filed a dispute, explaining that the audio couldn't possibly be copyrighted.
The next day, amazingly, his claim was rejected. Not by YouTube itself — it's unlikely that a Google employee ever saw the claim — but from a representative at Rumblefish, who reviewed the dispute and reported back to YouTube that their impossible copyright for nonexistent music was indeed violated.
Back at YouTube, eeplox found himself at a dead end. YouTube now stated, "All content owners have reviewed your video and confirmed their claims to some or all of its content." No further disputes were possible, the case was closed.
Whether caused by a mistake or malice, Rumblefish was granted full control over eeplox's video. They could choose to run ads on the video, mute the audio, or remove it entirely from the web.
A History of Screw-Ups
On Sunday night, Reddit took notice. Within hours, the thread was on the homepage, commenters were freaking out and, to his credit, Rumblefish CEO Paul Anthony was fielding questions in an IAmA interview until 2:30am.
His argument: One of Rumblefish's Content ID reps made a mistake by denying the dispute, and they released the claim on Sunday night. "We review a substantial amount of claims every day and the number is increasing significantly," said Anthony. "We have millions of videos now using our songs as soundtracks and keeping up is getting harder and harder."
This is the latest in a long series of foibles or outright abuses of YouTube's Content ID system. Content ID was intended to help copyright holders manage the chaos of YouTube. They'd provide copies of their audio and video for analysis, which would then algorithmically match newly-uploaded videos. If a match was found, rightsholders could automatically block the video or, increasingly, claim money from video advertising.
Content ID's monetization was a huge boon for copyright holders. Uploaders could keep their videos online, while copyright holders profited from the creative reuse of their work.
But the last couple years have seen a dramatic rise in Content ID abuse, using it for purposes that it was never intended. Scammers are using Content ID to steal ad revenue from YouTube video creators en masse, with some companies claiming content they don't own, deliberately or not. The inability to understand context and parody regularly leads to "fair use" videos getting blocked, muted or monetized.
Bypassing the DMCA
The problem is that media companies and scammers are using Content ID as an end run around the DMCA.
With the DMCA, the process works like this. A rightsholder could file a claim against a video with YouTube, and YouTube would immediately take the video offline. If there was a mistake, the uploader could file a counter-notice. The video would then be restored by YouTube within 10-14 business days of the counter-notice, unless it went to court.
It wasn't perfect, by any means, but it was fair. Disputes could always be appealed, and both parties were given equal power. And if a claimant lied about owning the copyright to the material in question, they could face perjury charges.
The current system, led by Content ID, tips the balance far in favor of the claimant.
Rumblefish never needed to prove they were the copyright holder, but were still given ultimate control over the video's fate. Uploaders can dispute claims, but the only people reviewing claims are the Content ID partners that filed the claim in the first place, who are free to deny them wholesale.
A Simple Fix
The solution is simple: if a copyright holder wants to pursue a disputed Content ID match, they should file a DMCA claim. That's the only way to guarantee their rights, and make the copyright holder legally responsible for telling the truth.
In fact, this is exactly how YouTube says that Content ID "fair use" claims should work. In practice, this doesn't appear to be true any longer. Content ID partners, of course, can file a DMCA notice at any time, but why bother if they can reject the counter-claims themselves?
(Preferred partners like Universal Music Group can go a step further and block videos directly without filing a claim.)
This problem has been on YouTube's radar for at least two years, but it's only getting worse as unsavory companies discover this nascent business model. Claim copyright on media you may or may not own, and let Content ID do the rest.
By letting Content ID partners have the final word, and not trusting their own users, YouTube is violating its trust with its community and damaging fair use in the process.
I originally published this article over at Wired, where a commenter pointed out that this process may actually violate YouTube's "safe harbor" granted through the DMCA. If they choose to ignore disputes, they're effectively giving content providers an end run around fair use and the DMCA.
Selfish Crab wrote:
It seems like by providing the Content ID system, Youtube was trying to pre-emptively identify copyrighted material, like a first-pass dispute system. Their lawyers probably concluded that so long as the content ID system falls back onto DMCA takedown procedure, they are still in compliance with the DMCA sufficiently to retain their safe harbor.
So if Content ID claim disputes do not fall back onto DMCA takedown, as Andy's article suggests, there's a case to be made that YouTube no longer has liability protection from users. It is a whole another can of worms to analyze what a legal claim against youtube would look like. You'd have to look at the YouTube Terms of Service (i.e., the contract) to see if maybe they contracted around this problem already, you'd have to figure out damages, etc etc. Or I guess you can just raise a shitstorm and that's enough of a moral victory.
In a Google+ comment last December, senior copyright counsel for Google and former EFF staff attorney Fred von Lohmann acknowledged the problem.
Yes, we're aware of that problem in the Content ID dispute process and are looking at what we can do to fix it. It's the result of a complicated collision of how to handle geographically limited Content ID claims, disputes, and global DMCA removals. Turns out to be a hard problem to figure out. But we're thinking on it.
Virginia law student Patrick McKay got in touch with Annie Baxter, a public relations manager at YouTube, about this issue.
This is one of those corner-case outcomes that emerges from several different rules, none of which was intended to yield the result you've encountered (i.e., DMCA takedowns are global, but Content ID ownership claims are territorial). Unfortunately, addressing it YouTube-wide is going to take some time, both for pondering and implementing.
So while we can promise you that we're thinking about this, we can't promise you a fix or time-table. And feel free to tell the OVC we're looking at it and trying to come up with something.
In the meantime, anyone in the Content ID program is offered free reign to claim copyright on your videos and profit directly from them. I'm hoping this gets cleared up soon.