So rather than saying more about why Youtube/Gootube is living off of copyright infringement, I thought it would be an interesting excercise to try to answer How to Youtube Legally, and who, if anyone would be able to pull it off.
The answer lies not in who can pull off licensing deals with content providers, but who already has licenses in place with the content providers. Who is already paying them big bucks and can create a win win scenario for themselves and rightsholders.
The answer as it turns out is pretty simple, and not something "Netizens" will want to hear.
Comcast, Charter, TimeWarnerCable, Cox, Insight, MediaCom, Cablevision, basically any cable company , and outside the cable companies, the telcos that offer TV service, and finally the Satellite Companies, DirecTV and Dish Networks, all could pull off a legal version of Youtube.
These are the companies that are paying billions of dollars in aggregate to the cable networks already. The cable networks of course are paying the content owners who pay the downstream rightsholders. Whats more, they all already have in place licenses to promote the programming they are distributing within pre defined limits. So if Comcast or Dish Network wants to promote the Daily Show on Comedy Central in a commercial, or on their websites, they already have permission to do so with limited video rights.
In addition, most of the above already are Service Providers in the defined sense of the word. They offer broadband access to their customers on their own, or in partnership with others. The fact that they have broadband customers and pay content owners huge amounts of money gives them the opportunity to do any or both of the following.
1. Youtube Clone.
They all are working out deals with content providers to be able to stream or offer VOD/TV, it wouldnt take much at all to enhance their deals and ask for the ability to offer flash based video of user uploaded clips, with limitations in length and encoding quality. Limit the clips to say 5 minutes, with an option to the rightsholder to take down anything they dont want made available on the site. Tracking the length of a flash video is right there in the meta data, so their flash transcoder could easily shut off anything beyond 5 minutes. In addition to what users upload, they could of course upload their own content without limit to enhance the depth of offerings.
For music videos, they could get the same financial deal that Yahoo and other sites have with the labels for music videos. But, knowing that the labels want to have their own outlets on TV for their music, they have some leverage to work out a trade as an option.
In addition, each would have the option to enhance the benefits available to their own broadband subscribers. So Comcast for instance, could do their deal so that non Comcast subs would be limited to 100k encoding quality with the flash codec, but subscribers could have their content transcoded to 300k, and watch video with 10 minute limits, or whatever enhanced benefits they could negotiate with the content providers for their subs.
So basically, the big TV distributors could pretty easily work out deals with content rightsholders to be everything Youtube wants to be, but have the inside track to get it done quickly since they are already paying money to the rightsholder and this would be a simple extension.
if it makes sense for a video to be on Youtube for promotional value, wouldnt make more sense to be on the site of a partner that is paying you big money already ?
2. Safe Harbor Video Hosting Done Legally
Since everyone likes to pick on the telcos in net land, lets use them for this example. Lets say that Telco1 offers to its broadband subs the ability to host their own webpages, ala myspace or facebook. And lets say for the sake of example, they also offered exclusively to their subscribers the ability to upload up to 10Gigabytes in a single file or across as many files as they could fit.
In addition to the hosting, they would let you associate all kinds of metadata so you could more easily find it when you searched across your gigabytes worth of file(s). They would host the file in its original format and then once it was uploaded, they would give you a couple buttons for you to choose from. A button to post to your myspace page. A button to post to your Telco1 homepage. A button for your blog. HTML code for you to post it anywhere you want.
Basically, since its your video, they will allow you to put it anywhere you want, as long as its your website and under your control. If the original video format wasnt compatible with the website that you wanted to host the video, they would allow you to download a transcoding tool that converted it to the right format. Then you could reupload the files in the myspace or whoever format and keep the original, or take it down if it consumed too much of your storage capacity. This way, the Service Provider hasnt altered the files in anyway. The user has.
Then being the smart telco who reads this blog, they create Tubedexy. Tubedexy would be their own search engine specifically for finding videos and building community around those videos. It wouldnt look like Youtube, it would look more like how IceRocket.com shows videos it has indexed, with the groups, discussions, friends, users, etc added in. In other words, it wouldnt be promoting videos, it would only be linking to videos. Like a typical search engine.
Under this scenario, Telco1 would truly, no questions asked, qualify for the Safe Harbor Provisions of the DMCA.
They wouldnt have to do deals with anyone.
If they were hosting an infringing video on a users Telco1 Homepage and received a takedown notice, they would have to take it down. If the infringing video was hosted on other sites, Telco1 wouldnt care. The other sites would be hosting the infringing videos, so they would get the takedown notices. Telco1 would only really be bothered when an user was found to be repetitively infringing and uploading files indiscriminately. Then Telco1 would have to out the user to the rights holder after receiving a subpoena from the rightsholder. But thats something Gootube and all other sites will have to do as well, so thats not competitive negative
No fuss, no muss. It all would be 100 pct legal .
So maybe Rupert shouldnt sell DirecTV. It, along with all his Fox content could be great leverage to make myspace the last site standing when it comes to video. Or maybe the Telcos should go on a little buying spree to gain some webhosting and video expertise and gain a foothold in the social networking world.
Or maybe Google will just buy enough of the Telcos and cable companies to cover the country and offer broadband for free. Or set up free wireless everywhere, but require a credit card for "incidentals" to qualify as a service provider. Then they would be a service provider and could really legitimize Youtube with only minor changes, and of course own the world.
Maybe Starbucks would take that as a competitive move against their instore wireless.
Google vs Starbucks. Now thats a corporate deathmatch that could be interesting to see. Unless of course MicroSoft stepped into the frey to be the white knight to roll up all those that Google didnt want. Whats better than a corporate deathmatch ? A menage trois death match between google, microsoft and starbucks...
You want to play a game of global nuclear domination ?
Sorry for the tangent, i couldnt resist :)
YouTube - Legally
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Reader Comments
(Page 1)2. Mark, just out of curiosity, why don't you start your own Cable/ISP company (provider), and do all the things that you proposed could be done in this post? Is there anything stopping you from doing that? A hybrid Cable/ISP provided service is right up your alley. What are you waiting on? With all of your companies that you allready have,you've got most of the pieces you need for this incredible jigsaw puzzle. When can we expect it? I'd subscribe. Maybe you could call it Markstube. Just a thought.
From Mark = at 4k per sub, it would take billions to get in the game with any scale
Posted at 6:26PM on Oct 22nd 2006 by Erica
3. It's funny how the Web has created some type of warped sense of reality. Just because something is easy to distribute, and people do, doesn't make it right.
It's like when people steal cable ot satellite TV. They don't think it's a big deal because it's stealing something that is not tangible. But they'd never go to a store and rip off a pair of $75 jeans.
4. Isn't it obvious that we're in a new era, and that after another 20-30 years, today's copyright laws will be more or less antiquated?
The only real "answer" to Hollywood's new media "dilemma" is this: The so-called big boys have to raise the production bar. I don't know if that means Surround Vision, 3D theater displays, or "alternative ending"-laden, all-you-can-eat, multi-screen cinema n drafthouses, or whatever. But clearly, today's standards can be and are often replicated and surpassed without much problem from independents. The ONLY real difference is distribution. The novelty/mystique of slowly "Hollywood Production" is dissolving.
We renegades will win this if the old guard continues with their ostrich act.
Posted at 10:23PM on Oct 22nd 2006 by Charles
5. Mark,
Having the copyright laws is just an infinitesimal part of the equation. I think you underestimate the talent and vision of the netizens.
In 1977, Xerox had the money and the scientist to become a computer giant. The owned the technology that Steve Jobs used to make the Macintosh computers. But the suits at Xerox lacked the computer skill and vision of what the future would be like and so the opportunity was stole from right below their noses.
I like to use the analogy of the net as a big stage where you can compose a piece of music and if you do it just right, it becomes a hit. But just because you own the recording studio and have the money to make records, it does not mean you can sing.
Whoever goes up against Gotube will soon realize that their success is due to a lot more than just putting up a website and inviting people to upload videos.
There is a learning curve involved. That is why companies like Google merge with other companies to capitalize on the advantage of a company like the one YouTube has in leading the market.
GoTube would need to blunder and falter significantly before any other company could match their marketing advantage.
Posted at 11:41PM on Oct 22nd 2006 by Antonio Howell
6. Why bother limiting who uploads files, given the described SP/media partnerships?
Who knows what content will generate the most traffic? Why even bother predicting it will be your subscribers? In the end, all Telco1 wants is traffic to the stuff they host *if they can profit or eventually profit off of it*. I might be wrong, but I'm not under the impression that storage space of crummy material is more expensive than potential revenue generated from the good stuff. (You might be able to further optimize this by having a "this sucks less" feature..the material getting the best traffic is streamed at a higher quality and a longer time to live on the server).
All other things equal, that good stuff is more likely to come from a nonsub than not unless you have more than 50% of the market share.
I'm happy to ignore the concept of a brand here, and the fact that part of Youtube's success is that is was One YouTube, and not many Baby Bells.
For reference:
"So Comcast for instance, could do their deal so that non Comcast subs would be limited to 100k encoding quality.."
"..lets say for the sake of example, they also offered exclusively to their subscribers the ability to upload up to 10Gigabytes.."
Posted at 12:32AM on Oct 23rd 2006 by David Kennedy
7. I agree with you. I laughed when I read Dick Parsons say that TW considered a youtube purchase For what? They have so much content that all they have to do is set up cybershop and youtube is gone. smh. that brand isn't worth 1.6 billion. not when it only takes 3 months and content to build up one of your own.
i think the psychology of it comes into play as well. but that's another discussion about why people would be resistant to a big corp's youtube.
at the end of the day, bandwidth + content makes them the king of the land, but they move like sloths. in fact, they haven't been moving at all. they'be been completely reactionary. the cable box can be a console (for xbox live distribution of games - forever updated with new levels, skins, etc) DVR, browsing machine, data collector (on viewing and surfing habits - a more complete picture than google can provide), etc. data is data, and the cable companies inadvertently positioned themselves to run this whole shit. Google is quickly moving to offer free bandwidth - but they don't have content - so even in a world where people are getting free bandwidth from google, they'll still pay TW (I'm in New York) for content/cable. Cable is positioned to DELIVER THE WORLD into the living room - and on its own terms. Google cutting all the deals in the world isn't going to get you hbo for free.
Here's the other reason why cable is so well positioned - cable boxes are free! unlike microsoft/apple (who are endeavoring to get into the living room), getting cable service is as simple as making a call - and the boxes come. No box to buy, no service to subscribe to - no separate bandwidth to have. That's why I think that the xbox (as media center) and itv and the like are doomed to failure. cable can just copy the features and GIVE THEM AWAY, because they are in the content/bandwidth business. It's why I use the word TIVO but use a dvr given to me for free by my cable company. (The XBOX might be msft's biggest mistake - and uncharacteristic deviation from a strong business model, which has been partnering with hardware providers to provide iterations of software solutions - generating a platform attempts to make oneself a necessary evil which prevents one from reacting quickly and accurately to the market because one has inherent bias). At the end of the day there will be no boxes; there will be a tuner of sorts in your television that allows you to choose from the available cable providers in your area. Sign up, and voila - let's go. game/content/data down the fat pipe. Imagine the day a struggling company like Sega licenses its entire catalog to TW - so I can get my Sonic jones fed on any one of my boxes.
Imagine an additional channel that has all games - library tiers (depending on what level you want) to current games, all games, etc. Imagine everyone on TW with a gold game package, getting Halo 3 when it comes out, and the latest ps3 only game when it comes out (after all, these arbitrary demarcations in the marketplace are exactly that - the consumer wants platform independent content).
Starbucks is not positioned in the same way. I'm actually a bit confused about the starbucks thing - what do they do to counter free bandwidth from google (which ends up netting them less coffee sales)?
I'm rambling - it's late, and I've been friendly with the liquor tonight.
Posted at 12:46AM on Oct 23rd 2006 by blyx
8. you're right Mark but the programmers, yes I know you're one with HDNet and HDNet Movies,will most likely excercise some rights they think they have and limit the MSO's, Satellite Provides and Telcos from streaming content online without paying many more even more money which some may do but will not do it right and will end up losing money.
Posted at 9:32AM on Oct 23rd 2006 by David Ward
9. Google v Starbucks v Microsoft
If Starbucks moved into technology more to battle Google, would Google and Microsoft start making coffee? Nationwide chains of Google and Microsoft Coffeeshops? Starbucks has the fancy italian coffee sizes, would Microsoft offer windows themed sizes? "Yeah, I'd like an XP, no wait, better make it a Vista Mocha Choco Latte with a uh, DOS scone." Google always aspiring for simplicity would go back to small, medium, and large.
The scary thing is, I can kind of picture what the coffee shops would look like. Google's would be very white and sparse. Microsoft would try for some avant-garde stuff with triangles and abstracts built into the wall. Which company would be the first to build newsreaders into the table? The homepages would be news.google and msn.com of course.
If Starbucks developed an OS, would the codename be Moby Dick? Would MicroSoft give the coffee away for free with every purchase of a cup?
Posted at 9:42AM on Oct 23rd 2006 by Adam
10. Am I the last person in the world to know who you are? Google me .. LOL!! Found you last night and I must admit I felt like a bit of an ass .. oh well I laughed it off. Keep it real Mark .. 30+ all the way. R
Posted at 11:03AM on Oct 23rd 2006 by Rebekah
11. Antonio Howell's comments are spot on. It is fairly straight forward to build a legal version of YouTube. It is very easy to replicate the YouTube technology in 6 months for less than $1M.
But this isn't about simply supplying video content on the web. That has been done for years, and Mark Cuban was one of the first to do it. This is about a hip community of video hackers that take clips of music and video and "mash" them together in unique ways. It is about finding the "golden nugget" 2 minute clips among hundreds of hours of video, then tagging and editing it to make it fun and interesting.
The real problem here is the vast difference of opinion on the "value" of those clips. The music people think they should get a large fraction of $.99 (typical download fee) every time a clip of their music is used in a home made video. But YouTube can only generate a penny or less per stream/download. Same story with the video/movie people, only the numbers are bigger.
So, even if YouTube or any other legal video service agreed to split the revenues 70/30 or even 90/10, there wouldn't be enough revenue there to satisfy the copyright holders. There is a lot of reality checking and negotiation that needs to happen to make this a viable business.
Don Dodge
12. "GoTube would need to blunder and falter significantly before any other company could match their marketing advantage."
Who says they can't? And who says it can't happen quickly?
Social networking is still a relatively young and unexplored realm of the net, and there have been several blunders already. Friendster failed. And then upstarts like MySpace came along and capitalized on their weakness. MySpace is now unbelievably huge. Put aside the current inability to monetize traffic, and there's a perfect example of David conquering Goliath.
13. Mark, Great blog and straight-forward comments! I am really becoming a fan. You obviously must be ready for Mavs season, though, from the amount of time and words you are putting into this (very interesting) GoogTube issue. Note: Being from Cleveland, I am not, however, a Mavs fan, except as a distant second to the Cavs. Go Cavs!
Posted at 4:15PM on Oct 23rd 2006 by Brent Moll
14. I guess if I don't agree with you, even while posting on topic, I will get deleted. Interesting concept.
Posted at 4:32PM on Oct 23rd 2006 by G M
15. There's more value in DirecTV then presently realized. Because of a cost you know well - bandwidth.
Imagine all the video content in the world - and assume you want to distribute that content to all the users in the US who want it as efficiently / economically as possible. Then imagine that the number of DVR / PVR (video HDDs) connected to both broadcast and IP systems is increasing. Which rules would you create and follow?
First rule: LIVE and new (time sensitive) stuff gets broadcast.
Second rule: Most popular stuff gets broadcast.
Third rule: Niche stuff gets IP delivered - p2p, server client, multicast (sure someday).
For years Tivo bought CHEAP late night half hours on Discovery because it had a 99% footprint on basic cable and sat networks. I always think a new service will emerge to allow a content buyer to buy late night half hours and have Tivo, Dish / Direct, Cable DVRs tune at the appropropriate time (there's a way to do this in the VBI (ask Disney's new partner in Moviebeam about it) - and forever upset the apple cart that the networks have running on top of the broadcast players. In many ways, competing for their current return on bandwidth / broadcast delivery would be very much appealling to a content maker (studio) and fan base - who say doesn't want to see "Frasier" or "Firefly" cancelled. For such an enabler, even the commerical sales would be lots of fun (personal) and they'd be in a great position to take over IP delivery - if they were inventive.
mw
Posted at 5:30PM on Oct 23rd 2006 by Morgan Warstler
16. "The Coming Dramatic Decline of Youtube"? "I Was Wrong"?
You should go into politics.
Posted at 7:31PM on Oct 23rd 2006 by Drew
17. As an owner of HD broadcast channels, to what degree could you benefit from utilizing any "sub-licensure" treatment that may apply to you on a pass-through basis?
--
What this idea really needs is a desktop button that refers to My Video Hosting, which refers to everyone's own "personal" dedicated video hosting space on their ISP's server - wherein what they upload to host is kept on their (the customer's) own assigned web space at the provider, and not the provider itself (at least in a legal sense).
Then you institute the TubeDexy search engine for just that "proprietary" content. It's like telco branded Napster.
Broadband provider who did this type of network on a large enough scale could venture out from there - in whatever direction they choose, hosting or otherwise...
Posted at 10:12PM on Oct 23rd 2006 by nonattender
18. Here's an interesting article on the topic of Google, Youtube and court cases. Thought some might enjoy reading it.
http://www.smh.com.au/news/business/youtube-to-make-life-even-busier-for-google-lawyers/2006/10/23/1161455662458.html
Posted at 5:10AM on Oct 24th 2006 by Lachlan Wood
19. Mark,
You had a lot more cred b4 you became a rights holder yourself. Since then, you have led the stupidity charge over and over. You Tube exists the way it exists because the rights holders (including you) have overstayed their hand!
In short, if the rights holders (including the $ folks at the networks) would stop playing 'guard the content' all the way down to clips and images (in fact, attempting to rewrite the definition of editorial content and infringing there) they would wake up and hire fifty people to dump every clip and every image they could throw at YouTube and Eyetide and every other intenet content player.
These are marketing opportunities and no threat to any on the rights holders $.
Instead, you guys keep playing the 'hide the salami' game and the users go look at other things...get interested in other things. You lose all the way around.
So, if you just look around you and assess that the tech guys are not listening to you, go find them and put your NBA content with them, you'll enhance your $ channels and co-opt the new services as marketing plays!
Remember Broadcast.com? Those were the days when you used to 'get it'!
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1. I wonder how many hundreds of million dolars have you lost on this Google/YouTube deal to rant this mutch.
From Mark- Not a nickel. I dont have a position in any company even remotely related. It doesnt affect HDNet, it doesnt affect the Mavs, Landmark Theaters, HDNet Films, Magnolia Pictures, 2929 Ent, Icerocket, Filesanywhere, not a single entity i have a nickel invested in.When I see a major company breaking the law and saying its not, its an interesting topic of debate worth a few blog entries to discuss it and the different angles. If the law of the land for copyright turns into the equivalent of jaywalking, then I think its a door that opens for everyone. Including me. So i have far more to gain if Google's position of hiding behind the Safe Harbor Provisions stands. Then I can steal other peoples content and sell around it like Youtube is. It becomes a Larry Lessig Universe which in turn makes video on the net even wilder than it is today. Thats only good for me. High Def content wont be impacted in any significant way, and I can have all kinds of fun with the content of others.But as much fun as that would be, I have no doubt it wont happen.thanks for taking in an interest in my financial wellbeing !m
Posted at 5:48PM on Oct 22nd 2006 by I.T.