Google has announced that it will soon penalize sites that are repeatedly accused of copyright infringement. But one site in particular doesn’t need to worry: Google’s own YouTube. It has a unique immunity against the forthcoming penalty.

POSTSCRIPT: Please also be sure to read our follow-up article, Google: Many Popular Sites Will Escape Pirate Penalty, Not Just YouTube

The penalty — which we’ve dubbed the Emanuel Update — impacts Google’s web search results. If someone has reported a web search listing as being a copyright violation, using the DMCA takedown mechanism, that’s a strike against the entire site.

Accumulate enough strikes (how many, Google’s not saying), and a publisher may find their entire site hit with a penalty. Every page, whether it was reported for copyright infringement or not, will have less chance of ranking well.

Strike Count Against Publishers

If you’re trying to understand what sites might be at risk, Google has a page where it discloses which publishers have the most takedown strikes against them:

But many, if not all, the copyright strikes against YouTube won’t show up on this list. Google even tells you this:

Requests for products other than Google Search (e.g, requests directed at YouTube or Blogger) are not included.

The YouTube Escape Hatch

See, people who are upset with alleged infringement on YouTube are directed to a completely separate DMCA form to use. Try it yourself. Use the form Google talked about in its blog post today. The form warns you away from using it to report YouTube violations right at the top, and if you still try to pick the YouTube option, you get a further warning to go elsewhere:

When you do go elsewhere, YouTube jumps you through more hoops before you can just report. You go the YouTube Copyright Center:

From there, if you follow the “Content Owners” option, you get to a new page with several further options:

There, YouTube will let those who want to do a removal do so, but it also pitches a way to submit multiple notices more easily through a special Content Verification Program (a sign that YouTube gets lots of takedown requests), as well as the pretty cool Content ID system, which lets those who have infringement allegations decide to be mellow, let those videos stay up with ads and collect some income off of it.

Content ID is very nice, but if copyright owners aren’t convinced, they can still go the takedown route and get a video removed. The page at YouTube hosting the video itself remains up. The page also remains potentially listed in Google. The request definitely doesn’t count against YouTube in the tallies that will be used in the new pirate penalty, since these aren’t considered web page removals.

If Google had a common DMCA takedown system, YouTube would face a threat with the forthcoming penalty. How much is uncertain. Since Google doesn’t seem to disclose the number of YouTube takedown requests it has acted upon (I have asked for a figure), there’s no way to assess YouTube against the other sites on the strikeout list above.

YouTube In Search Results

Now let’s see how this works in action. You might recall earlier this year, Saturday Night Live did an absolutely hilarious parody of how Downton Abbey might be promoted if it ran on Bravo.

Unfortunately, for reasons that have never been made clear (but likely a rights dispute between NBCUniversal & the makers of Downton Abbey), it was never aired outside the East Coast of the US nor posted online officially.

That didn’t stop people posting it unofficially, without explicit permission. Here’s how the results currently look at Google, if someone were seeking that video in a common way right now:

The first result leads to the Perez Hilton site, where you can still watch the video hosted on that site just as you might watch it hosted on YouTube. If NBCUniversal filed a DMCA request, chances are, that page would get removed (assuming there’s not some licensing agreement, and I doubt there is). Perez Hilton’s entire site would have accumulated a strike against it.

Next, Styleite also self hosts the video, it seems, so it’s the same situation as with Perez Hilton. The same is true for Gawker, as best I can tell.

Several other pages listing in the top results above show the video, but because they embed from YouTube, they’re not really at risk for a DMCA takedown. These include known pirate sites like Time and Entertainment Weekly.

NBCUniversal’s own Today site was cheerfully embedding a pirated version of the video on YouTube until that got taken down, but it’s still promising to assist with second-hand infringement as soon as the clip turns up elsewhere:

Sorry! NBC Universal has blocked the YouTube clip that showed the “SNL” skit. If it shows up anywhere else online, we’ll get it back up here.

How The Google Search Umpire Doesn’t See YouTube’s Strike

Now let’s talk YouTube. In the screenshot above, I’ve pointed to where YouTube is listed, with a “Safe!” caption. It’s not that the video is safe. NBCUniversal could file a DMCA request to get the clip removed. But as I said, doing this just removes the clip as what we could call a “YouTube takedown,” not a “Search takedown.” YouTube, in the eyes of Google Search, has not suffered a copyright strike against it.

Technically, the YouTube listing appearing in the screenshot above isn’t a web search result but a Google Video result, inserted by Google Universal Search. That’s also true for the other video under it, a different listing from the Perez Hilton site. But that Perez Hilton video listing would get removed via the web search takedown system, as there is no Google Video removal. The YouTube one, as I’ve explained, would fall under the YouTube removal system.

Google: “We’re Treating YouTube Like Any Other Site”

I did ask Google about all this and was told

We’re treating YouTube like any other site in search rankings. That said, we don’t expect this change to demote results for popular user-generated content sites.

I just don’t see that. There’s no way to treat YouTube — or Blogger — like any other site in the search rankings, when those sites have special takedown forms that don’t allow their alleged infringing activity to measured up against other sites.

Postscript: Be sure to also see our follow-up article, Google: Many Popular Sites Will Escape Pirate Penalty, Not Just YouTube

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