Viacom Dios
YouTube, which Viacom had sought to buy on several occasions, argues that the safe harbor provisions (Section 512(c)) protect its conduct. It argues that it runs an open platform, which would cease to exist if service providers, as opposed to content providers, had to determine whether the copyright holder had authorized the material posted on its site by non-YouTube employees. That’s because generally all videos — even your videos of your dancing baby — are copyrighted when produced and the question of authorization to be posted is uniquely in the content providers’ ken, not the service providers’.
But the unique and hilarious facts of this case, adduced in discovery, make one wonder why Viacom brought this suit. It turns out that some, if not all, of the so-called copyright infringement of Viacom’s material was posted on YouTube by Viacom – or deliberately left there to generate business for Viacom. As YouTube notes on its blog site:
For years Viacom continuously and secretly updated its content to YouTube even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked, It opened YouTube accounts using phony email addresses, It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
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YouTube argues that Viacom couldn’t even keep track of what it had posted and on “countless occasions” demanded the removal of clips it later asked to be reinstated. Based on this pattern and practice, YouTube argues it had no way of knowing what copyrighted material was authorized to be on its site and what was not.
On its part, Viacom says YouTube deliberately violated copyright law, citing some early emails by company executives, emails the company argues were misconstrued. In fact, YouTube argues that the suit is a bad faith effort to harm the company Viacom had repeatedly and unsuccessfully tried to purchase for itself.
The communications industry has a lot riding on this case. So does everyone who relies on the internet for information. According to an AFP story:
The lawsuit highlights that copyright rules need to be updated for the Internet Age, according to Computer and Communications Industry Association president Ed Black.
“It is a huge threat to the openness of the Internet,” Black said of the lawsuit. “A bad verdict in this one for conduct that is not horrendous would have an unbelievably chilling effect on all players in the Internet world.”
The case essentially calls for YouTube and other websites to become “copyright police” for content owners.
Meanwhile, the law could be interpreted to provide copyright protection to every Twitter text, blog post, Flickr photo and email, according to Black.
Each day there are typically 50 million Twitter “tweets,” 900,000 new blog posts and three million pictures uploaded to Yahoo-owned photo-sharing website Flickr.
“You’d need a huge army of censors to sort through this stuff and that is really not feasible or reasonable,” Black told AFP.
If you actually read the YouTube emails, rather than just take the word of Google and its paid-for allies, you’ll realize that it’s quite clear that they knew that they were building a business on infringing, copyrighted content. Once you get through their spin, you find facts that are actually quite “evil.”
Copywrite Law can only protect what is written, produced but not performed. It also protects the actual medium on which content is distributed. The problem is that once it becomes altered by digitazation it no longer resembles the original content in any meaningful way. Copywrite Law has become so convoluted as to become almost meaningless. You cannot copywrite sound or vision so how does copywrite law even apply?
The more that Big Companies try to further their protection and take punitive action the more distant from original intent they stray. Technology is moving aster than the ability to legislate. Instead of going after U-Tube or other sites they should be grateful for all the free advertising. If they were smart they would simply make a provision that when some of their content is used it would automaticallt tie in some advertising from some of their sponsers.
Or, perhaps this is the inevitable consequence of laws failing to keep up with new technology. Our current copyright laws were written prior to the invention of VHS tapes. Talk to teenagers today and ask them what a VHS tape is, and you’ll probably get a blank stare, though some of them will recall using them to watch Disney movies back in preschool. An entire entertainment technology has come and gone, and our copyright laws haven’t changed one iota to reflect this. Why does this matter? Because in decades past, there was no possible way that unauthorized use of intellectual property could possibly benefit the owner of that intellectual property, but with the internet, it can turn into free advertising. Take the Powerpuff Girls Doujinshi, for example: six years ago an amateur artist began publishing a fan comic based on several cartoons on Cartoon Network and Nickelodeon, primarily cartoons written by Genndy Tartakovsky, featuring older versions of several of his characters. When Cartoon Network found out about this, their first instinct wasn’t to sue him, but to hire him for their MMORPG project, Fusion Fall (this plan to hire him fell through for some unknown reason, but no effort was ever made to suppress this fan comic).
This brings us back to the central issue in having standing to bring a lawsuit: harm. While producing unauthorized derivative works for profit clearly constitutes harm, as it denies the owner of the intellectual property his/her cut of the revenue, producing fan works for free generally has the effect of hyping the original work, all the while giving demonstrations for which studios and publishers can recruit new talent. Consequently, very few artists attempt to suppress fan works, and many actively encourage them. As it is, legal experts can’t even agree on the legality of fan works, though there have been cases finding that the producers of entertainment works can’t dictate to the consumers how those works are to be enjoyed, as long as they were paid for. Now, since copyright laws were written for the purpose of protecting artists so that they can profit from their own work, it is de facto legal to produce fan works if the copyright holder doesn’t object. Whether or not it is de jure legal is a question that no one has an interest in being the test case to answer. Thus, fan sites dare not defy a cease and desist letter, or even a polite request by an artist not to have fan works published based on his/her work.
Perhaps it’s time for Google/YouTube to play hardball. Delete and ban any videos in any way related to Viacomm, fan produced or otherwise. Don’t allow Viacomm to derive any free advertising benefit from YouTube. Something tells me Viacomm wouldn’t be very happy about it.