I’ve written about this subject way too many times, but in my defense, it’s a good one.

The topic: web sites that provide media content to visitors, such as video and audio, by streaming, linking, or hosted downloads. I think I’ve probably picked on video file sharing sites more than anyone else in the past when discussing related IP issues.

For the last couple of years, the big debate has been over liability. For a typical file sharing site that may have a user-uploaded clip on its server that violates someone’s copyright, who’s to blame? In identifying site operators as the likely targets, this is what I wrote back in July of 2008:

Between the individual uploader/downloader and the platform operator and the ISP, who is responsible?

IP owners will always rather go after the operator — this is just on the basis of practicality. Going after individuals is expensive and inefficient. It also can make industry look bad (e.g. when RIAA sues kids, which is bad PR). Going after ISPs is another possibility, but since they are one more step removed from the infringing activity, it’s harder to argue about things like knowledge, duty to police, and so on. Moreover, as we’ve seen with Comcast and file sharing in the U.S., ISPs that take efforts to filter or block systems run the risk of being sued by other users regarding quality of service provision. Tough to be an ISP these days.

Then we have the operators.

So a lot of the talk in legal circles focuses on enterprise liability of operators and, more important, what those operators can do to minimize their liability to copyright owners. Video file sharing site Youku set up a copyright management platform back in January that allows IP owners to notify the operator that a file is protected by copyright and should be taken down. Sufficient to innoculate Youku against operator liability? No one will know for sure unless/until they are challenged by a copyright owner in court.

The latest attempt to stay ahead of the regulators is the “Declaration of Copyright Self-Regulation of the Chinese Internet Sector,” a statement of purpose signed by all the big players, including Baidu, Sohu, and Youku. (H/T IP Dragon.)

In addition to the general statements regarding respect of copyrights and so on, I found paragraphs three and four to be of particular interest:

III, Strengthening supervision and management of internet users uploading works, prompting users that they may not upload works of others, preventing third parties from using information network platforms of a certain work unit to engage in unlawful activities of copyright infringement.

IV, Vigorously adopting technological steps conform to generally acknowledged industry standards, preventing the occurrence of infringing activities. Works listed in administrative copyright management entity notices or in notices of the implementing organ of this Declaration as not being permitted to be uploaded without authorization, technological measures shall be taken to restrict users from uploading; technological measures shall be taken to restrict users from uploading video works in their period of movie theatre screening, and hot broadcasting.

As you can see, this language (my emphasis) is all about specific measures utilized by operators to prevent copyright infringement. In other words, these measures as described are another way of codifying the types of platforms that have already been put into action by sites like Youku.

Why bother with non-enforceable statements of purpose? Judges pay attention to industry standards in addition to strict legal liability. While it doesn’t always work, “everyone is doing it this way” is not a bad defense. In Common Law countries, specifically negligence law (subset of tort), this is similar to the “state of the art” and “industry standard/custom” defenses. Chinese law does not follow these concepts, and the legal cases in question would be based on a copyright infringement theory, as opposed to negligence, but you get the idea here. A judge might be impressed that the entire industry agrees that this kind of system is appropriate.

Used to be that media content providers that professed to protect copyrighted works were scoffed at. Given China’s overall piracy rates with respect to digital media, it’s no surprise. But the movement in the past couple of years has been impressive, and several of these sites can now boast that not only are they making content deals with a lot of copyright owners, but they are also implementing bona fide takedown platforms designed to minimize incidents of copyright infringement.

You’ve come a long way, babies.

Links to previous posts on this subject:

Coming Soon to a China Courtroom Near You

PRC Cyber-Litigation II

Cyberlitigation Update – Looking for a Chinese Safe Harbor

Tudou Definitely Looking for that Safe Harbor

China P2P Shakeup Latest in Gov’t Effort to Clean Up Video File Sharing Sites

WTF? Baidu Wins MP3 Deep Linking Case

Youku Suddenly Gets Religion On IP Protection? Not Exactly