"Google will have to turn over every record of every video watched by YouTube users, including users' names and IP addresses, to Viacom, which is suing Google for allowing clips of its copyright videos to appear on YouTube, a judge ruled Wednesday."
Viacom wants to know whether copyrighted or user generated content is more popular. Thats nice to know. What will really tip the balance of power in this case, now that every viewing instance will be in Viacom's possession, is the answer to how Youtube deals with porn.
Who identifies the porn on Youtube ? According to Youtube, its regular users who police the site. Personally, I dont believe it. Whether its individuals or technology that keep porn off of Youtube, it really doesn't matter. If Viacom can use this data to show that Youtube manages the presentation of porn in any way, then they lose their DMCA protection.
Which means they lose their case to Viacom.
Ruh Roh - Porn could sink Youtube in Viacom case....
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(Page 1)2. I wonder if Mark will ever give up on his YouTube rants and get over his Google envy.
Posted at 11:59AM on Jul 3rd 2008 by Dave
3. Porn? How are you making that stretch?
Viacom have a T&A division nobody but you knows about?
This is an Infringement Case. Your assumption that the SafeHarbor protection goes away if as you say YouTube is managing Porn, is a stretch.
Posted at 12:27PM on Jul 3rd 2008 by alan herrell - the head lemur
4. What could sink the case for Viacom . . if Google goes through the data and finds out that Viacom IP addresses uploaded offending clips, even if a non-Viacom property.
Posted at 12:44PM on Jul 3rd 2008 by Gregory Schultz
5. Unfortunately, Viacom has to use the data for copyright infringement purposes and not for how YouTube deals with p0rn.
http://news.cnet.com/8301-1023_3-9983631-93.html?part=rss&subj=news&tag=2547-1_3-0-5
Posted at 12:49PM on Jul 3rd 2008 by Gregory Schultz
7. You're wrong on the last sentence. (Or rather, you need a lot more qualifiers in your last sentence.)
If YouTube keeps the porn off the site, it may still be impractical to do the same thing for copyrighted content. A "no wangs" rule is a lot easier to enforce than a "no material which would, if posted, violate copyright law." Any viewer can tell that something is pornographic, but separating the copyrighted material used with permission from the illegal material from the unlicensed but still permitted because of something like fair use is not a distinction most people (or even most attorneys) could confidently make. But regardless, even if YouTube loses its DMCA safe-harbor status, it's still not necessarily liable for contributory infringement. Unlike, say Napster or Grokster, YouTube has a lot of non-infringing uses. A high incidence of infringement is not enough for contributory liability anymore than a high incidence of gun deaths is enough for suits against the gun companies.
8. I am getting a kick out the tin foil hat privacy whacks blogging about how this is the end of the internet as we know it. What a bunch of nonsense. Viacom having the data is no different than Google having it. They only wanted the data to confirm what they already know from other sources.
Lets not forget your isp has it as well, and every router in between you and YouTube. I am about 14 hops away from YouTube via what looks to be about 5 different companies that control the routers. That means, every time I click (typical) on a YouTube video, I (and you too) have handed that click over to 7 different companies (5 at the router level, YouTube themselves, and then my isp besides). Also, lets not forget that alot of big ISP's (aol, earthlink, BT) run proxy caches that are managed by third parties. Both the third parties and alot of ISP's are more than willing to sell you their logs.
You'd have to be pretty technically naive to think this data was staying only in the hands of YouTube. This is not an assault on privacy - this is the defense of copyright and intellectual property that has been infringed. FanBoys are going to have to learn to deal with it and join the rest of us in 2008 (the quill pen, the 2400 baud modem, and your online privacy are dead).
My only concern here is not one of privacy but liability. Since Viacom has asked for user id's, it is pretty clear they may be teeing up to file suits against the users doing the most uploading and downloading (eg: same thing the RIAA does with MP3's and illegal music).
Posted at 1:40PM on Jul 3rd 2008 by Brett Tabke
9. Dan is right. The DMCA safe harbor doesn't say that the online service provider can't take ANY actions to control its content. See a good summary here: http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Requirements_to_obtain_the_safe_harbor
Posted at 2:10PM on Jul 3rd 2008 by DWAnderson
10. Mark,
I find the hypocrisy of bloggers and general users insane on this issue. Wouldn't you guys still want Napster ?
The same blogger who support you tube, would cry hoarse if somebody copied all of their posted verbatim and made a buck or two using google adsense.
Google is not doing enough, that for sure. If they can filter porn, they can filter copyrighted content as well. It suits their needs not to filter copyrighted video.
If suddenly all copyrighted video is yanked of Youtube tomorrow, it will be a graveyard. Its only this many cat and dog video one can watch.
Posted at 2:58PM on Jul 3rd 2008 by Venkatesh
11. Mark knows this stuff inside and out...and he is right. He is taking a few short cuts in his blog post assuming that everyone else understands the law and the rules. Obviously, many do not.
The point is this. If YouTube knows about porn being uploaded, and knows how to filter it out, then they have "knowledge" of the content on their service. This "knowledge" voids their DMCA safe harbor exemption.
To Dan's comment, it doesn't matter if it is impractical to screen out copyrighted material. We used the same argument in the Napster case. The judge replied "You created this monster, you are responsible for controling it".
Napster didn't store any songs on its servers. YouTube stores millions of files. Napster didn't sell any ads or take any revenues. YouTube does. These two facts weaken YouTube's case considerably.
Viacom very nearly got access to YouTube's source code. The judge denied it. But, you can see where they were going. They wanted to see how the software handled uploads, screening for porn, recording titles, creating hashs to identify files, identifying duplicate files, etc. All of these "features" mean YouTube has "knowledge" about the content on its servers.
This case is far more complicated than most people realize. Viacom has a mountain of copyright law on its side. The laws are not fair or balanced. Logic and reason don't enter into the equation. I can tell you this from first hand experience at Napster.
12. And here is the other side of the argument for YouTube's defense. I actually wrote this on my blog more than 2 years ago.
YouTube has "substantial non-infringing use", which was the critical legal issue in the Sony Beta-max case. If a product or service has "substantial non-infringing use" than it can not be held liable for contributory copyright infringement. However, individual users could be sued for copyright infringement. The RIAA is still doing this today.
YouTube has thousands and thousands of videos that are not copyrighted, which are produced by independents or amateurs. Napster really didn't have any non-infringing content so the case was pretty clear.
YouTube can stay within the DMCA law by "taking down" any videos that infringe a copyright when they are notified by the copyright holder and served with a "take down" notice. They do not need to proactively search their site for infringing video. It is up to the copyright holder to notify YouTube and provide some evidence that they are the legal copyright holder. YouTube must then remove the infringing content within a reasonable time using "commercially reasonable efforts".
This case is complicated. Prior cases are a guide, but several new areas of law will be tested.
YouTube/Google has very deep pockets so they can hire good lawyers. Napster had David Boies, one of the best trial lawyers in the country...and we lost.
Deep pockets also mean that the judge/jury can award billions in fines and damages.
13. Wait a second though. Hasn't YouTube removed anything they were asked to remove for Copyright-Infringment purposes for some time now? How often have you seen the "this video has been removed" notice. Anytime a user flags something YouTube can review and remove it at their discretion, it doesn't mean a violation of the DCMA.
Posted at 3:49PM on Jul 3rd 2008 by Noah
14. I'm more concerned about the violation of privacy.
Posted at 4:50PM on Jul 3rd 2008 by HJ
15. Viacom, GE/NBCU, MPAA, RIAA, etc....Go ahead and push as hard on your agenda. You media companies have already lost and will continue to lose with your pathetic rearguard actions. Haven't you learned from Napster? What already has happened to the music industry?? The harder you push your agenda without recognizing your customer's preference the more someone or something will fill that need. Pretty soon something new will fill what were your customer's entertainment need. And, that new will most definitely not come from you dinosaurs.
BTW, the coming actor's strike is going to put the nail into TV.
Posted at 6:37PM on Jul 3rd 2008 by Peter Lee
16. Ruh Roh. Now Viacom must die. Will there be a media company who figures out how to exist in the new paradigm?
Posted at 7:50PM on Jul 3rd 2008 by Jeff
17. Mark
The question about what invalidates the DMCA protection is not as clear as your previous posters believe, or than you suggest in the posting. I'm pretty sure it hasn't been answered in at the high court (unless Google was shown to be encouraging, per Grokster).
We did half a chapter in our new book on Web Video on how you can make money when the price often has to be free. The answers are on target when you have other things to promote or have limited financial expectations. I'm almost certain that on the other hand the larger budget productions will have to deal with less income no matter what they do. Ad support and other stuff is real money (see CBS-TV), but almost always less.
It's not clear who will feel the (nearly inevitable) impact hardest. A few thoughts perhaps beyond the obvious:
1) It is totally unclear whether long tail or blockbusters will do better in the coming easy distribution and publicity world. The general assumption has been long tail will benefit, but Eli Noam at Columbia has been saying for a while that the biggest, most popular stuff will increase share. If you can watch anything you choose, will you go for the biggest hits? That's Eli's expectation, and I haven't been able to find anything conclusive in the data.
2)It is quite possible that if the total income for ESPN, NBC, or sports network goes down, most of the (2-5 year) impact will be on the rights payments, some of which will be passed on to the players over time. It's not clear that anyone other than the players/owners currently collecting will be worse off in that case. Essentially the same games, with the same players, will be held and watched whether the team salary average $2M or $6M. Similar applies to Hollywood major productions; if Will Smith works for $8M and Penny Marshall for half of her current draw, the final product should be only slightly changed.
3) Any programming that's free reduces the amount people are willing to spend on paid entertainment. It's probably limited, but if I can choose more excellent stuff over the web I'm that much less likely to pay for HBO, HDNet, my cable programming, and probably theatrically. I don't have a handle on how big an impact that will have, but there are some people already canceling cable for Hulu and a pair of rabbit ears. My guess is that will grow if a lot of good stuff comes over. Besides the ad-supported current network shows, there's an enormous library of work, some excellent, that is earning almost nothing in current distribution in the U.S.. That ranges from the best of the Canadian and Australian broadcasters through the vast majority of movies more than a few years old. I assume that's why Netflix can do the free streaming of so many movies, because the rights are very cheap.
As we all hook up our Playstations both to the net and our TVs, I think this will grow from insignificant to a real factor.
4) All of the above will tend to drive down the amount collected by makers of movies/video. There are two contrary trends however.
-----------
Separately, I appreciated the interview you gave on the difficulty of carriage on the cable systems. I can see why that of more immediate concern to you than what can go over the net, but it's the reason I'm fighting so hard to keep the net open.
Dave Burstein
Posted at 8:13PM on Jul 3rd 2008 by Dave Burstein
18. To those complaining about Mark commenting a lot on this topic, I think he does so because it's a very, very significant legal issue. I find it to be a very compelling topic, and so to me, Mark's posts are very interesting, as are the comments here from some industry heavyweights.
Digital distribution is making for a messy landscape for content producers. Who will figure out new business models? Who will win, who will lose? Messy times make for opportunities, but it is not obvious at all right now where those opportunities are.
Posted at 10:43PM on Jul 3rd 2008 by Charlie Jackson
19. Mark, I'm afraid you don't have an understanding of Fair Use. If a short clip of a program or movie is used in the context of providing commentary or review, it's Fair Use and there's nothing that Viacom can do about it.
Sure, wholesale posting of entire episodes of tv shows is illegal, but even then, some properties that Viacom might claim as infringement might not be. There are several episodes of Viacom owned television shows that are public domain because Viacom, or the copyright holder at the time, didn't renew the copyright.
It would be impossible to create an automated system or a user policing scheme to remove infringing material except in cases where whole programs are posted; even then, the material could be public domain.
It's funny, but I'm never really interested in the current tv shows and other network tv junk that people post at YouTube - there's some fascinating public domain tv shows from the 50s and 60s there, along with student films, ads and other material. It's not the vast wasteland of dog trick and cute baby videos you make it out to be.
Posted at 10:48PM on Jul 3rd 2008 by Randy
20. Here's a response by TechDirt:
http://techdirt.com/articles/20080703/1307481590.shtml
Posted at 12:50AM on Jul 4th 2008 by Moen
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1. You may be on to something, Mark. But I think Viacom is trying to put a chill on YouTube's use, by scaring people into thinking their viewing habits will eventually be someone's public record.
Granted, we have an upcoming generation that doesn't give a flip what everyone can know about them, but efficacy has never deterred a scare tactic in the past.
Posted at 11:29AM on Jul 3rd 2008 by Ike