FANS of Neil Gaiman held their breath as the English author stepped to the podium to receive the Hugo award, dispensed by the World Science Fiction Society at its annual Worldcon shindig on September 2nd. Mr Gaiman opened his mouth and, almost before he could finish a sentence, at precisely 10:43pm Eastern Time an automated copyright-violation analysis killed the broadcast. It never went back up. The legions of Gaiman buffs online, presumably no longer breathless, heaved a sigh of disappointment and tweeted their displeasure like mad.



Instead of their idol's speech, thanking Hugo voters for recognising his screenplay of an episode of the British sci-fi series "Doctor Who", viewers were treated to a message that the feed was banned "due to copyright infringement". The television excerpts shown for nominees had apparently been matched against stored "signatures" (a kind of mathematical shorthand) of registered protected material. No matter that the footage was in keeping with fair-use principles and the producers of the nominated programmes, including "Doctor Who", had themselves submitted the video in question for the express purpose of being played at the live ceremony and streamed. Such niceties carry no truck with robots.

Ustream, the firm behind the internet broadcast, was immediately aware of the glitch but its boss, Brad Hunstable, explained that there was nothing it could do. The company had relied on a third-party clearance house, Vobile, to identify copyright violations. (Ustream has now suspended the contract until Vobile gets to grips with such glitches.) Mr Hunstable adds that the paid version of his service faces no shutdowns, and that users of the free, ad-supported variety (like Worldcon) may have been unaware they needed to notify Ustream in advance, a communication failure he hopes to improve.

This was not an isolated incident. Following the descent of Curiosity in August, NASA's uploaded video related to the event was pulled for several hours due to a rogue copyright claim. And on September 4th, YouTube's mechanical minions briefly took down Michelle Obama's speech from the Democratic National Convention because of background music and accidental matches from footage uploaded by news agencies that are automatically claimed.

The bigger question is whether automated tools can properly evaluate the use copyrighted content is put to. Fair-use exemptions apply in a variety of contexts, including certain kinds of mash-ups and remixes, as well as lengthy critiques. In America, the fair-use litmus involves determining whether commercial gain is at stake; the extent of the excerpt; the copyright holder suffers from losing the ability to sell his work; and the nature of the use. For example, in a case involving Righthaven, a controversial firm founded to pursue small claims of rights' abuses, a judge found that the reproduction online of an entire newspaper article was covered by fair use because of the social purpose involved.

The recent fiascos highlight a fear aired more than a decade ago by opponents of digital rights management (DRM), a type of encryption which enables playback only on licensed devices. Critics of DRM argued then that the film and music industry might use the system to block content with no recourse, regardless of whether the use infringes the copyright or not.

Such digital protectionism already exists in desktop and mobile video playback. Try to capture a stream of video or a screenshot in most operating systems, and the OS declines to do so or produces a blurred or blacked-out display. There is, of course, software which enables extracting protected video, but finding, installing and using it requires a bit of effort—not something a casual viewer will bother with, although not a bar to anyone with any determination.



Streaming-video services are not required to scan for offences, though they may argue to the contrary. Studios and television-production firms which co-operate with YouTube insist on active scanning. But the safe-harbour provision of the Digital Millennium Copyright Act (DMCA) of 1998 provides an exemption against monitoring, so long as services are not aware content they host infringes, and when informed of such respond to "takedown notices". US circuit courts of appeal have reaffirmed this exemption in the last nine months. By scanning for infringement, such services put themselves outside of such protections because they no longer can claim ignorance.

However, the DMCA provides enforcement only against infringement; it says nothing about how to enforce legitimate exemptions like the one which should have kept Mr Gaiman on the air. The many individuals who lose out as a result of such a blunderbuss approach are dispersed and lack the content producers' co-ordination and lobbying heft. As vocal advocates go, they could do worse than Mr Gaiman, who will no doubt now put his oar in.

Clarification: This article originally said Mr Gaiman is an "American author"; he is, more precisely, a resident of two decades in the United States who was born in Hampshire and retains his British passport.