iPlayer: first BBC YouTube take-down?

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I nearly called this post "iPlayer, the Queen & I: BBC apology". Or, "How I changed the BBC". But I thought that might sound a tad arrogant, even if true.

True? Why? What on earth happened?

Well, in May 2007 someone at BBC Worldwide reported my two BBC iPlayer video screencasts (which I'd included in my comprehensive iPlayer preview post) to YouTube, who immediately took them down and sent me one email per vidcast telling me so.

The BBC later told me it's the first time ever that they've taken action against a YouTube clip, despite many full BBC programmes or clips being on YouTube - so it seems I have the dubious honour of being involved in a BBC YouTube first there.

But I've also had the rather less dubious distinction of having the BBC subsequently apologise to me for the take down, in the same week as they apologised to the Queen. And furthermore, they told me that they're going to be changing their policies and procedures as a result of what happened to me.

Here's the full story.

My iPlayer post, and my precautions

I took part in the 2005-2006 beta trials of the BBC iPlayer's predecessor, the BBC iMP or MyBBCPlayer, and also in a small closed system trial of iPlayer earlier in 2007. I'd been keenly interested in iPlayer for some time, so much so that I'd read most of the papers to do with the BBC Trust's initial approval then their consultation on iPlayer, or, strictly, "on demand services", under the Public Value Test - yes, even the supporting evidence including the BBC management's original proposals, Ofcom's Market Impact Assessment, etc, sad innit (I read them over a period of months, mind you, I'm not that sad). And I'd urged people to respond to the consultation too.

I thought it would be helpful for people interested in iPlayer, but who hadn't had the chance to take part in the limited tests, if I wrote a comprehensive post based on those public papers and my own experiences of the iPlayer trials, in order to give people a clear picture of what iPlayer was about, what the BBC were trying to do, the progress to date, and some personal thoughts on it all. I just thought it would be useful to synthesise in one place some of the more interesting points that had come up from the masses of documents that had been floating around.

I finally published that post, which I'd been working on on and off for a few months, in May 2007 - i.e. a few weeks after the BBC Trust approved iPlayer on 30 April 2007.

I illustrated my post with a screenshot of the downloaded iPlayer Library software, and two video casts - one a screencast showing the main screens of the iPlayer Library and how you play downloaded BBV TV programmes, another a screen recording to demonstrate the video and audio quality of downloaded programmes - where I did include bits of downloaded programmes, but only fast forwarding quickly through them, with a one second clip here and a one second clip there.

Now being an A type who prefers things to be shipshape, aboveboard and by the book, I wanted to make sure that there would be no problems with my videos - so, before I put up my post, I checked the iPlayer terms for users in the original activation email they'd sent me:


The operative terms being:

Your access details to the Test Service (e.g. Username and Password) and any URLs or email addresses for the Test Service are confidential and are provided to you only for the purpose of the BBC TV Test. Please keep them secure and do not disclose them to anyone else.

Any unauthorised disclosure or use of your access details and other confidential information provided to you for the BBC TV Test may result in your removal from the BBC TV Test.

Now, as the BBC had never explained what "other confidential information" could be, given the context it seemed to me that it was the trial access details that they were really being hot and bothered about.

The BBC iPlayer Beta terms and conditions also said nothing about blogging, showing excerpts for review purposes etc:


Again, the emphasis was on username and password. And of course on not infringing applicable law including copyright law, but I wasn't planning to. I couldn't find any other info on what was or was not allowed.

So I thought it would be OK there as I was definitely not going to give anyone my iPlayer password or even username, and I didn't think that the iPlayer screens etc were confidential as the trials have been known about for ages and Channel 4's 4od etc had even stolen a march on the BBC in relation to downloading TV programmes. I really didn't think a preview of the various windows - list of downloaded programmes, player mini-window, preferences, etc, and a demo of the quality of downloaded programs - would be a trade secret. You look for programmes, you download them, you play them from a list, usual player controls, really nothing startlingly original there, I thought. I wasn't giving away how iPlayer works behind the scenes, the coding nitty gritty - I wouldn't know how; I just wanted to show shots of its functions and views / windows.

I'd blogged about the iMP trials, and so had others, without any problems whatsoever - including screenshots of some of the iMP windows and views. Surely iPlayer, which was much closer to launch and had been trialled by thousands of people, couldn't be more confidential than iMP, which was cutting edge when it was first trialled, pity it didn't get launched a lot earlier.

Also, I'm no copyright expert, but I'd deliberately only showed a snippet here and there of the actual downloaded TV programmes precisely because I didn't want to risk any copyright breach accusations, knowing how sensitive media companies are about this sort of thing. I was aware of the concept in the UK of "fair dealing", which saves you for being done for copyright infringement if your copy is a limited one for reporting or review purposes. I believed that the very short clips I'd shown for the purposes of my review would be on the right side of the fair dealing line.

The YouTube takedown

Given the great pains I had taken to do everything right, I was flabbergasted to find, just 4 short days after my post, that my videocasts had been removed by YouTube. The emails I got, one per video, were headed "Copyright Infringement", and went like this:

Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by BBC Worldwide Ltd. claiming that this material is infringing:

BBC iPlayer free video on demand - first look: /watch?v=8nciUdOM7Ow

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc.

Copyright © 2007 YouTube, Inc.

Here's a pic of one of the emails (just with my YouTube email details blanked out):


I assumed that someone had BBC Worldwide had sent YouTube a DMCA notice, possibly under YouTube's Content Verification Program for serial DMCA notifiers. (More on DMCA.) And YouTube of course immediately took the videos down.

The BBC's approach and my attempts to find out what happened

What got to me most was that no one from the BBC had even tried to have a word with me about it. I was given no chance to discuss it, never mind a fair hearing. YouTube never replied when I asked exactly what it was the BBC had said to them about my videos, so I had no idea what the case against me was. I didn't send YouTube a counter notice as I blog anonymously and didn't wish to give them my personal details, possibly all for nothing.

If the BBC had told me that they had had a problem with my iPlayer screen recordings, and with which bits and why, I'd have been happy to take down the videos myself, perhaps editing them and replacing them with more acceptable versions. But no one from the BBC tried to contact me about that, before the takedown or since. I genuinely felt I had done nothing wrong. (And, as it transpired, I hadn't.) Also, I felt that a take-down for copyright breaches would damage my credibility and reputation, and obviously I didn't want that. If I got any further DMCA notices (justified or not), I might even lose my YouTube account - and again I wanted to avoid that.

So, while I normally don't like to presume on others, I felt strongly enough about this to get in touch with a couple of contacts I'd been fortunate enough to make who I thought might know the right people within the BBC, or might be familiar enough with the copyright issues to suggest who I could take this up with and how (many thanks to Cory Doctorow who put me in touch with Tom Loosemore. The Open Rights Group didn't seem to be interested, but I guess the DMCA is a US issue).

That finally led, after some persistent chasing on my part, to my being invited to the BBC's offices to discuss the situation with Tony Ageh, Controller, Internet in the BBC's Future Media & Technology Department whose responsibilities include iPlayer, and Jem Stone also from the same department, on 13 July 2007 - a Friday, but fortunately not so unlucky for me.

Here's a photo of Tony Ageh (apparently there are hardly photos of him on the Web, so this may be an exclusive - of course I got his permission to take it, if anyone else wants to use it remember that the contents of my blog are licensed under Creative Commons):


And this is Jem Stone:



Tony and Jem were kind enough to spend over an hour and a half with me, apologising and explaining the background to the takedown notice. Jem has also since publicly posted a note for the record confirming that the BBC has in fact got no problem with any of my videos.

If either Tony or Jem considers that I've misunderstood what they told me at our meeting, no doubt they'll comment to that effect. But here is my understanding of what transpired.

So, what went on at the BBC?

They explained to me that given the history of secrecy which had surrounded iPlayer internally at the BBC , they believed that someone within the BBC must have panicked when they saw my videos - which were of a limited "pre-production" version of iPlayer which never made it to the public beta in that form.

I must admit that personally I don't quite understand what the big deal was about the test version, especially as I'd put a very clear warning on my post that it was a trial version and that the final one was likely to be different, and more to the point I can't actually tell myself what the differences are between the version I did the screencast of and the current public beta version (but then I'm no developer, maybe it was behind the scenes stuff). If there were any differences they really weren't very noticeable to me. (Besides, iMP was even more of a preliminary test version, and the BBC had never had problems with people blogging about iMP, as far as I knew.)

Nevertheless, it seems that at first many people at the BBC thought (and I guess whoever it was that complained to YouTube must have thought so too) that my post had been written by a BBC insider privy to information no one else knew.

Little moi, a BBC insider?! I explained that everything I'd said could be gleaned from the public consultation papers, which I'd been looking at since they came out in January. I pointed out that in many cases I'd linked to the source paper, sometimes even saying exactly which page or paragraph I'd got my info from. (I hate reports which don't cite sources that readers can check for themselves, whistleblowers excepted of course, because of my own minor involvement a while back in something which made me realise that you can't in fact necessarily trust what you read in the papers. I include as many sources as I can in my posts so that people can check if I'm right, they aren't forced to just take my word for it).

They acknowledged that, but it seems that the comprehensiveness and accuracy of my post had raised questions. Which I suppose I should view as flattering, in a way. Apparently I'm one of the few people in the country who's actually tried to read so many of those documents (and I should make clear that I didn't read them all, really I didn't, just the ones I felt were important - I just skimmed a few of the rest looking for interesting issues, and I'm pretty good at identifying key things from a skim. I don't talk about my day job as I blog anonymously (this is why), but I will say that its research aspects can involve having to sift through large quantities of data quickly, picking out what's important and assessing its significance, and then working out how to convey it in a digestible, user-friendly format to those who need to know it. So I'm used to doing that sort of thing).

Lest there be any lingering suspicion that I am in fact a BBC insider, Tony and Jem should be able to confirm that I was late to the meeting because I spent 15 minutes waiting at the reception of the wrong BBC building! Embarrassing for me to get lost (particularly as I've actually been to the BBC once before, for a short documentary recording), but certainly not typical insider behaviour...

So, it looks like someone at the BBC just knee jerk over-reacted on seeing my post and videos, which Jem had viewed when the post first came out and agreed were perfectly innocuous. That person must have just assumed a BBC employee was leaking inside information and rushed to tell YouTube to take down the videos. Which they did, without giving me any opportunity to challenge the take-down.

Furthermore, I wonder if the panic continued and maybe even spread, because an email to iPlayer trialists a couple of days or so after the takedown suddenly had this new line in it:


Yes, it said "You are reminded that this is a closed test and that all information regarding BBC iPlayer Beta is confidential." All information? Sounded a bit blanket and extreme to me, maybe so broad as to be virtually meaningless. What was it trying to get at? Weren't testers even allowed to tell anyone that they were just taking part in the iPlayer closed trial? Wasn't there a ton of info that was already public about iPlayer, not least because of the public value test consultations? And if "all" info on iPlayer was confidential, why were the BBC iPlayer message boards for trialists public?

Fortunately, that sentence seems to have disappeared from later emails to triallists, at least the ones I've received. Which makes a lot more sense. I believe that most of us want to do our best to abide by the rules, as a quid pro quo for being allowed to take part in the trials, but in return it would only be fair if the BBC were to spell out clearly the limits on what triallists can or cannot say or do, and in words ordinary people can understand, not legalese.

"All information is confidential" really isn't a big help there. But "You can blog about iPlayer but you can't give anyone your username or password and you can't screencast clips from downloaded programmes of more than 5 seconds' continuous duration each" would be helpful, then we'd all know where we were. I wasn't the only triallist confused about to what extent we could or could not blog about iPlayer, see this discussion.

In any event, Tony and Jem agreed that the take down of my videos really should not have happened. They said that they still didn't know the identity of the individual at the BBC who had reported my videos to YouTube.

What I feel should have happened

Now, given my exhasutive, and probably exhausting, citing of sources, I feel that no one who had actually bothered to read my full review properly all the way through, and had followed the included links to my sources, could possibly have thought that I'd got the info from anywhere else but the public papers.

The only bits not completely public were the videos of iPlayer in action, well only a few thousand or so triallists throughout the UK had seen iPlayer hadn't they (and some 5,000 had seen iMP before that), very hush hush indeed innit. None of them would ever show it off to their family or mates or tell them about the closed trial would they, oh no.

As you can tell, I feel that the BBC really should have had systems in place for dealing with suspected confidentiality or copyright issues etc on blogs, message boards, mailing groups and the like. But, apparently, it seems they didn't - though Tony and Jem say they will now, going forward (see further below).

To me, proper procedures would include at the very least investigating whether there really was a problem, and trying to initiate a dialogue with the person concerned to see if the situation could be resolved in a mutually satisfactory way. One minimum step surely has to involve checking with the BBC's legal bods to ensure that they really have legal justification for doing whatever it is they want to do, like a DMCA take-down or its UK equivalent - e.g. was it really a copyright breach or could it be classed as fair dealing, if it was a borderline case then shouldn't it be considered more fully? etc. (More about DMCA take-downs in a separate post.)

I should stress that I don't want to start a witch hunt here. It's not like the BBC have been going round automatically issuing DMCA takedown notices wholesale to every site in sight without bothering to look at each situation individually. Now that really wouldn't be on.

In the case of my video casts, the take down notices seem to have resulted from the actions of one unknown individual who apparently just didn't think to raise it with someone higher up the chain of authority, but simply took it upon themselves (rather like a Blue Peter production assistant perhaps, ahem??) to kill my YouTube screencasts.

Personally, it's enough for me that the BBC have apologised and also explained in a comment that there was actually no problem with my vidcasts, so that I've been publicy vindicated (though positively withdrawing the takedown notices from YouTube would round up the matter nicely wouldn't it?):


But if I were the BBC, for reputational reasons - particularly given the sensitivity about this sort of thing at the moment, in the wake of the premium rate and other phone-in scandals and the like - I'd want to track down the individual concerned, explain why they shouldn't have done it, give them a big smack on the bottom and tell them not to do anything so silly again.

Actually, I'd want to go further and tell the world that I'd reprimanded the person responsible, and that I'd quickly put in place systems and controls to stop erroneous take-downs etc from happening again - as the BBC have in fact done in relation to the phone ins and premium rate telephone line issues, voluntarily conducting internal investigations to root out other phone ins that weren't run as they should have been, and going whooops mea culpa falling-on-sword cap in hand to the BBC Trust. And to be fair, the BBC have told me they are going to be formulating policies for dealing with this sort of thing in future, which I cover below.

Why do I say that I think there's a reputational issue here? Because, when you send in a take down notice, you have to say to the ISP or whoever, "I confirm that this is a breach of copyright" (actually, give "A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law"). If the person sending in the notice believed that it was a breach of confidentiality, rather than a copyright infringement, then weren't they making a false statement?

Now as for the copyright point, while again I stress that I'm no copyright expert, I believe that whether a particular thing is a copyright infringement or not depends on the exact facts of the individual situation as well as on what the copyright law says and what the get outs are which are allowed for education, criticism and the like.

In the USA there's a getout known as fair use, and a similar (but narrower) one called fair dealing in the UK. In other words, it's not a copyright breach if it's fair use. And fair use can include reporting of current events and criticism / review.

My videos were clearly produced for the purposes of reportage and review, and furthermore I'd deliberately cut short any actual clips from downloaded programmes so that there weren't more than a few continuous seconds of each programme clip. I was pretty sure they fell on the right side of the fair dealing line, and Tony and Jem confirmed that they agreed with me.

So it wasn't correct that my clips infringed any copyright at all. Even leaving aside the confidentiality / trade secrets issue, on the copyright front it seems that whoever sent that take-down on behalf of the BBC had sent out an erroneous statement in the name of the BBC. Even if they had wanted those clips removed because they were worried that someone had leaked details of iPlayer, well I hope it's not news to the BBC that confidentiality ain't the same as copyright, and you simply shouldn't be using a law designed to stop copyright infringements in order to plug a suspected leak. That's just plain not right, in my book. And it can't look good for the BBC to have their people going round issuing false declarations in their name.

The BBC, new services, and the Web 2.0 world of interactivity & transparency?

Why wasn't I contacted before the take-down? I gather one major reason was that, as I've mentioned, at the time there were no policies or procedures at the BBC for dealing with suspected copyright or confidentiality breaches (or maybe they meant, suspected copyright or confidentiality breaches in the context of disclosures by triallists) and the like. I was a bit surprised to hear that, but that seems to be the case - although hopefully in future things will be different. As a result of the take-down and its aftermath, Tony and Jem told me that they will now be trying to change 3 key areas across the whole of the BBC:

1. How the BBC tests and launches new services.

Including laying down guidelines and being clearer about what testers can do or say. Check, I couldn't agree more.

2. The BBC's 2-way interaction and dialogue with licence fee payers.

Check, in this age of interactivity via Web 2.0 (and of course even via old fashioned telephone lines!), the BBC should certainly engage with viewers a lot more, and understand that viewers will want to engage with them.

3. The BBC's communication with the public about, and accountability for, their role and functions, e.g. that they don't in fact own the rights to many programmes they broadcast.

Again check, there is a lot of misunderstanding about the role and functions of the BBC. Personally, despite the take down fiasco I am actually a big fan of the BBC, I think the BBC has the almost impossible remit of having to try to please all the people all the time, and in that light has made an excellent fist of most things, although like any monolithic organisation it has been too slow to change.

I do wonder a little though whether, had I not happened to know people like Cory with contacts in the BBC, and had I not been persistent in following this up, anything would have happened on this at all. (My original videos are still marked as "Rejected" by YouTube by the way, so they've clearly not got around to squaring things with YouTube officially yet. I'll probably put them back up just for historical interest if they ever get unblocked.)

The Director General of the BBC reported to the BBC Trust recently on the editorial failures within the BBC in the light of the phonein scandals so the BBC has a lot on its plate at the moment, particularly as the BBC Trust have just started their first service review of the BBC (on which they're consulting the public). I doubt very much they'll think it worth putting any resource into looking further into this particular lapse, especially as it only happened to one person (me!) as far as I know, and I'm neither the Queen nor a small child. But you know that old light bulb joke - the light bulb has to really want to change? Given everything that has happened this year, it seems that there is a real will to change within the BBC, and I for one am happy to give them the benefit of the doubt.

I would certainly very much like to hear more in due course about the specific key changes Tony and Jem mentioned to me, however - the devil is always in the detail, in my view.

Separately, I think this incident does raise a major copyright / censorship vs freedom of speech problem with the US DMCA (Digital Millennium Copyright Act), which is the reason why YouTube took my videos down, but that deserves a post of its own.

Overall, all's well that ended well with my little BBC iPlayer videos saga, I've posted another screencast and no one's tried to shut it down this time, so I guess it all worked out OK. If I look on all this as me doing my bit to help make the BBC more transparent, responsive and communicative, if the BBC really will change for the better as a result, then it'll have been worth the confusion, frustration and worry I lived with following the take down.

UPDATED 10 August 2007: the videos are still banned on YouTube, so I've re-uploaded them elsewhere. If you're curious to see what all the fuss was about (and they really weren't terribly thrilling, you have been warned!), feel free to check them out:

• first video - screencast of the iPlayer app in action, menus etc
• second video - extracts from downloaded TV programs played via iPlayer, to demonstrate the picture and sound quality.
  

(I used a voice changer in case anyone wonders.)

Tags: iPlayer, DMCA, fair use, censorship, Improbulus, A Consuming Experience