WHEREFORE THOU ART #46
The headlines have been singing recently about Viacom's big $1 billion lawsuit against YouTube for copyright infringement. Oh my! YouTube's in trouble! YouTube's been bad!
What's it all about, Alfie? From my perch, the lawsuit is less about copyright infringement that it is about competitive advantage, opportunism, and fear.
Where to start? YouTube is a two year old website where anybody can upload video clips, and where everybody else can watch and comment on them. YouTube was famously bought up by Google last year for $1.65 billion dollars, a pretty good sum for a site that generates next to no revenue. What makes YouTube (which gained the nickname "GooTube" after the Google purchase) so valuable is the fact that it's became, in a very short time, one of the most popular destinations on the web. Thousands of video clips of every description are posted there every day, and millions of people go there to be entertained every day. Time Magazine's designation last year of "you" as its Person of the Year was really all about YouTube, perhaps the most visible example of the remarkable emergence of "user-generated content". YouTube is the epicenter of the fascinating trend of creative works being made and distributed, often by individuals and hobbyists, outside of the traditional entertainment industry machinery, a trend made possible by cheap new digital technologies, the internet, and the irrepressible human need to self-express.
Viacom is, of course, the huge media conglomerate that owns or is tied to such companies as CBS, Paramount, Dreamworks, Simon & Schuster, MTV, Comedy Central and BET.
Along with a slew of homemade clips (like the infamous Mentos and Coke geyser movies) a lot of what gets posted on YouTube, not surprisingly, are clips from television shows.. If you miss, say, Jon Stewart, or South Park, chances are somebody's posted it on YouTube. Technically, such a posting is an infringement of the copyright of whoever created the thing. I go there often to see if Keith Olberman has recently brought the hammer down on the Goombah-in-Chief. On the surface, that's what the lawsuit is about, Viacom is claiming that YouTube, by providing an open-ended invitation for anybody to post anything, is liable for copyright infringement for having Viacom "properties" up on the YouTube site.
There's a little problem with Viacom's claim. As a copyright owner, it's Viacom's responsibility to police it's own copyrights. That's always been the way it is. In the lawsuit, Viacom is trying to impose a duty on YouTube to police Viacom's copyrights, which is ridiculous. Under the law, YouTube's obligation is to investigate possible infringements when it's told about them and to take down clips it determines are likely to be infringing. That's it. And it's the way it should be.
The reason that the burden should be on Viacom and not YouTube to discover infringing material is that copyright enforcement it an elective decision by the copyright owner-and not everybody who has material posted on YouTube without permission is upset about it. All three of my band Blotto's early '80's MTV videos have been posted on YouTube by somebody-- one is under the heading Worst '80's Rock Video Ever!-and we're cool with that. It keeps the band alive, and we can look at the comments and see what people think about us. At some point, maybe when YouTube puts in place its proposed system to share what little advertising it gets with copyright owners, we'll decide to ask them to take down the rogue Blotto posts and put up our own, but in the meantime, we're happy the way things are. We're glad to be on YouTube.
My favorite posts on YouTube, things that get forwarded to me and that I giddily send on to my like-minded friends, are old TV clips of rock and soul artists. It's really archival stuff, time capsules of a bygone, wildly influential era. Each of these clips no doubt has a copyright that's owned by somebody, but most of them probably are owned by companies that don't mind that people are watching. Or companies that aren't around anymore.
No, YouTube shouldn't be somebody else's copyright policeman. If it was, there will be default deletions every time it appeared that a post was taken from some TV show somewhere, whether or not the actual copyright owner is bothered by the post, and a whole big chunk of interesting and culturally significant stuff will get wiped out, for no good reason.
And YouTube has been reasonably diligent in holding up its responsibilities under the law. When notified of infringing material on the site, it removes the offending clips. It may actually be a little over-aggressive. My nephew posted a skillfully constructed South Park parody. With the sound off you'd think it was an installment of South Park, but if you listen to what's going on, you realize that Chef and the boys are singing the praises of advanced calculus. Acting on a complaint from Viacom, YouTube took my nephew's post down, and now he has to jump through hoops to try to establish to YouTube that his masterpiece was a parody of South Park, and therefore a fair use of Viacom's precious little copyright in South Park.
Viacom's lawsuit is a sham, and of course Viacom knows this. The lawsuit isn't about the law. It's about the fact that Viacom and YouTube couldn't agree to licensing terms for Viacom content on YouTube, like the deals YouTube has negotiated with a host of other big copyright owners, where the owners agree share in revenue from posted clips. Viacom wanted more, apparently, than the others. It's about the fact that Google, which is drowning in cash, is now the owner of YouTube, and maybe Viacom's shiny young lawyers can convince a court to adopt a twisted, constricted interpretation of the law, and force Google to cough up some dough. Its about the fact that Viacom's television and movie studio properties are running scared because of what's happening on the internet; they're losing market share by the bucketful to the internet, and they're struggling to develop their own "internet strategies". They want to sequester everything they own onto their own closed web environments, where they can slather users with advertisements and cross-promotions and impulse buys, and can collect precious marketing data from users. The studios are also terrified that, increasingly, the homemade stuff that gets posted on YouTube is infinitely more real and entertaining than the uninspired dreck the studios spend millions to produce. And if Viacom can't beat YouTube with better programming, maybe it can beat it with lawyers.
Finally, the lawsuit is about Viacom's new website, starting up this summer, called Joost. Joost is some sort of TV-on-the-internet site, where you can go and watch "professionally produced" video content, complete with commercials. Wow. This concept, as mundane as it is, probably wouldn't have occurred to Viacom (or any of the other television outlets rushing to get programming available on the web) absent YouTube's resounding popularity. But hey, the kids seem to love this internet thing, so let's create a pale imitation of YouTube and then try to kill the original.
As an old friend used to say, "That's showbiz, babe!"
© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.