Viacom sues Google for $1 billion

This is the part that is the weak link in Wu's summary:

"Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don't ask, don't tell," you're getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build."



So, he is basically conceding that section §512(c)(1)(A)(ii)) is actually a massive grey area of the law, yet to be tested in the courts system.

He even expressly states that it's not an "airtight" safe harbor for Google.

Again, this is not about me liking or disliking Viacom's suit or the public policy consequences that would result if they're successful. But to ignore the possibility that they might have a viable case here is to invite disaster in making any determination about Google's relative value.

On a practical level, it would appear that repeated instances of, for example, 'The Daily Show' clips being posted on youtube would eliminate any good faith argument by Google that they had no notice of the publication of such clips, thus not allowing Google to avail itself of the protection ordinarily meant to be afforded under section §512(c)(1)(A)(ii)) of Title II of the Digital Millennium Copyright Act of 1998.

 

Does anyone here really think that Google spent a bagillion dollars on youtube without first having a huge team of expensive lawyers giving them the thumbs up that they could win this?

The difference between google and the napsters of the past is googles insanely large war chest.

If OJ can buy his way out of murder, Google can surely buy its way out of this.

 

But that's precisely where the 'Napster' analogy comes in.

I am not making a personal judgment about what should or should not be. I am simply saying that Napster, et al. were held legally liable, at one level or another, by the legal system, when it was determined they were allowing individuals to use their service to infringe on copyrights.

Title II of the Digital Millennium Copyright Act of 1998 doesn't provide a bright line defense for Google, IMO. It appears to shift the burden onto the copyright holder to inform Google (or youtube) that there is protected content on their system, and demand of them its removal. But this only appears to be the case where there is no reason to believe youtube already knows of its existence.

In cases where clips of the same show (e.g. 'The Daily Show') have been uploaded and hosted hundreds, if not thousands of times, it seems to stretch credulity to believe that youtube doesn't have implied knowledge, at tge very least, of what is being done.

If not, section §512(c)(1)(A)(ii)) truly is a paradigm shift in how copyright protection is meted out under our system, as it places such a huge burden on the copyright holder, and gives the potential offender such a wide berth.

 

This sums it up. Any way you wanna splice it or spin it, the only value of YouTube was copyrighted material, fight videos, music videos, movie clips and whole episodes. 90% of the user created content is pure crap.

And let's not forget, even under their original model, YouTube had almost no chance of profitability. The whole scheme for the venture fund was to hype it up, build it up and sell it to some sucker. Standard exit strategy nowdays.

Well, the people making the decision are not stupid. Not only did they steal/copy the search algorithm from another source, they were able to hype it up and package it into a 137 billion dollar company. It's not their money anymore, they long cashed out. It's the shareholders. And since the stock did jump a few % points when the YouTube news was announced, well, there is your stupid.

There are a few other websites with YouTube's exact model. And they are much better. Seems like becoming a dog & pony show takes away from true value.

 

A too well-written and pertinent an article not to post for easier reading, IMO (with full credits, etc.):


jurisprudence

Does YouTube Really Have Legal Problems?
How the Bell lobby helped midwife YouTube
By Tim Wu
Posted Thursday, Oct. 26, 2006, at 4:28 PM ET



When Google bought YouTube, the conventional wisdom—expressed in op-eds, newspaper articles, and scary editorial cartoons—was that they'd also bought themselves a whole heap of copyright trouble. The New York Times used the phrase "litigation-laden landmine." Part-time copyright theorist Mark Cuban warned that YouTube would face the same copyright fate as Napster.

There's only one problem with these theories: the copyright law itself. Under the copyright code, YouTube is in much better legal shape than anyone seems to want to accept. The site enjoys a strong legal "safe harbor," a law largely respected by the television and film industries for the choices it gives them.

But the most interesting thing is where all this legal armor protecting YouTube—and most of the Web 2.0 (user-generated content) industry—comes from. It's the product of the Bell lobby—Google's bitter opponent in the ongoing Net Neutrality debates. So, while YouTube may be the creative child of Silicon Valley, it is also, as much, the offspring of Bell lobbying power.

Back in the early 1990s, when the "information highway" was the talk of the town, Hollywood and the recording industry worked hard to make Internet companies responsible for any and all copyright infringement that happened via the Internet. Jack Valenti, Hollywood's chief lobbyist, warned that without congressional action, "the information superhighway … will collapse the great wonder of intellectual property." The recording industry, for its part, dispatched Johnny Cash to rhetorically link Internet piracy and, yes, a "ring of fire."

This summer, Sen. Ted Stevens, R-Alaska, earned the bemused contempt of geeks everywhere when he described the Internet as "a series of tubes." But back in 1995, Hollywood was insisting that the Internet be characterized as "a bookstore." And a bookstore, unlike a series of tubes, breaks the law if it "carries" pirated novels. So too, Hollywood urged, Internet companies should be liable if they carry any illegal materials, whether the companies know it or not.

Had that view prevailed, there would probably be no YouTube today, and also no free blog sites, and maybe not even Google or Web 2.0. What venture capitalist would invest in a company already on the hook for everything its users might do? But, in one of the lesser-known turning points in Internet history, Hollywood never got its law. Its unstoppable lobbyists ran into an unmovable object: the Bell companies, who own those "tubes" over which the Internet runs. In the mid-1990s, fearing a future of liability, the Bells ordered their lobbyists to fight Hollywood's reforms, leading to one of the greatest political struggles in copyright history. (This paper provides a history of this and other struggles.)

Hollywood employs legendary lobbyists, like Jack Valenti, but when they ran into the Bells, it was like Frazier meeting Foreman. The Bells quickly put holds on all the legislation the content industries wanted. Telecom lobbyists like Roy Neel, a close friend of Al Gore (and later Howard Dean's campaign manager), went to Congress and began saying things like, the "copyright law threatens to put a damper on the expression of ideas on the Internet."

Facing stalemate, in 1997 the industries settled on a compromise: something called the Online Copyright Liability Limitation Act, which became Title II of the Digital Millennium Copyright Act of 1998 (§512 of the Copyright Code). It is this law that makes YouTube worth paying more than what you pay for its videos. And its long-term effects have been enormous—you might call §512 the Magna Carta for Web 2.0.

Why? Section 512(c) of the law applies to "Information Residing on Systems or Networks At Direction of Users." In 1998, that meant Geocities and AOL user pages. But in 2006, that means Blogger, Wikipedia, Flickr, Facebook, MySpace, and, yes, YouTube—all the companies whose shtick is "user-generated content."

Thanks to the Bells, all these companies are now protected by a "notice and take down" system when they host user content. That means that if Jon Stewart notices an infringing copy of The Daily Show on YouTube, Comedy Central can write a letter to YouTube and demand it be taken down. Then, so long as YouTube acts "expeditiously" and so long as YouTube wasn't already aware that the material was there, YouTube is in the clear. In legal jargon, YouTube is in a "safe harbor." Earlier this week, when YouTube took down 30,000 files after requests from a Japanese authors' group, that was §512(c) in action.

Of course, as with any law, YouTube's legal status might not be 100-percent airtight. The law suggests (in §512(c)(1)(A)(ii)) that YouTube might be liable if, in the absence of notice, it is "aware of facts or circumstances from which infringing activity is apparent." Also, YouTube provides a search, and maybe it could be liable for that. There might be enough to make trouble in the hands of a judge who really hates "that whole Web 2.0 thing."

But we may never find out. What's really interesting is that the content industry actually likes §512 more than anyone will admit. The notice-and-takedown system gives content owners the twin advantages of exposure and control. When stuff is on YouTube, the owners have an option. They can leave it posted there, if they want people to see it, and build buzz. But they can also snap their fingers and bring it all down. And for someone who is juggling her desire for publicity against her need for control, that's ultimately a nice arrangement.

Stated otherwise, much of the copyrighted material on YouTube is in a legal category that is new to our age. It's not "fair use," the famous right to use works despite technical infringement, for reasons of public policy. Instead, it's in the growing category of "tolerated use"—use that is technically illegal, but tolerated by the owner because he wants the publicity. If that sounds as weird as "don't ask, don't tell," you're getting the idea. The industry is deeply conflicted about mild forms of piracy—trapped somewhere between its pathological hatred of "pirates" and its lust for the buzz piracy can build.

But what about Mark Cuban's copyright argument? Why isn't YouTube in trouble in the same way Napster and Grokster were? The first difference, as indicated, is that Napster simply wasn't covered by the §512 safe-harbor law, and YouTube is. Napster wasn't "hosting" information at the direction of its users, but rather providing a tool for users to find and download predominantly infringing content. It may sound odd that Napster gets in more trouble for helping you find illegal stuff than YouTube does for actually hosting it. But that's the law and why YouTube should really, really thank its friends at Bell.

There may also be deeper differences. If the Internet were not a bookstore, or tubes, but rather a red-light district, YouTube would best be imagined as the hotel, and Napster, well, the pimp. YouTube, like a hotel, provides space for people to do things, legal or not. It's not doing anything illegal itself, but its visitors may be. But Napster, everyone more or less now admits, was cast as the pimp: It was mainly a means of getting illegal stuff. Right or wrong, we seem to accept the benign vision of YouTube as an entity which, unlike Napster, was basically born as a place to showcase stupid human tricks.

The upshot is, as YouTube goes mainstream, copyright's etiquette rules are becoming clearer. Yes, these sites can make it easier to infringe copyright. But so long as that's not the principal aim of your company, you have more breathing room today than you once did. And under the emerging regime, if you do cause infringement, you have to be nice about it and make determined efforts to stop it. Apple has learned that dance well, even as its iPods make swapping music all the more part of being American. And YouTube has, in turn, learned from Apple the early lessons of Napster: You can act out in cyberspace. Just don't be a copyright pimp.


Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?

Illustration by Robert Neubecker

Article URL: http://www.slate.com/id/2152264/
Copyright 2007 Washingtonpost.Newsweek Interactive Co. LLC

 

A paltry one billion dollar lawsuit is a huge, massive, ginormous problem for Google? Why? You think the eventual settlement amount (way less than the eye-catching 'billion' Viacom is claiming) will matter to them if they lose? If they do lose, there are others who will be more distressed about it than Google.

And the fact is, they aren't going to lose.

 

Viacom is suing to shift existing law in it's favor.

Here is what mystifies me about GOOG:

(1) Since the YouTube takeover months ago...
Almost ZERO changes or improvements have been made to YouTube...
While competitors are moving rapidly.
(I know cuz I have > 50 clips on YouTube).

(2) The core problem is popular shows like "The Daily Show"...
Being deleted and repeatedly uploaded.

Why have steps not been taken to "fingerprint" a clip...
And then identify/block repeated uploads?

All you would have to do is "fingerprint" a key portion of the audio track...
Like Jon Stewart saying, "I am your monkey"...
And scan each upload for that "fingerprint".
The final Flash file is only about 10 MG...
So can be scanned in seconds.

I am just amazed that GOOG has done nothing at all...
And on the advice of the best lawyers in Silicon Valley...
Is completely relying on shaky case law.