Social Media Now: Dere Oughta Be a Law!
March 13, 2007 by Jason Chervokas
This isn’t a defense of YouTube. Not a legal defense anyway.
The Viacom/Google suit will revolve around how much control YouTube has over the content posted to it, whether YouTube’s business was deliberately built on copyright infringement, and the nature of the prior negotiations between it & Viacom. If the case reaches the Supreme Court Google will lose.
Maybe Viacom really wants to shut down YouTube. Or maybe we’re witnessing is a public price negotiation, one in which Sumner Redstone just put the hammer down.
Unfortunately the whole matter leaves the most important issue off the table–what to do about the broken state of copyright law in the US.
The Constitutional intent of copyright is , ” . . . to promote the progress of science and useful arts…” by extending copyright protection for a limited time. The idea was to give creators incentive to share original work, then allow other people the ability to built on the work. The time-limited nature of the protection would balance the competing interests of creator and society in a way that would best advance the interests of each.
The first US copyright laws followed the English model. An individual creator could be granted a 14 year copyright, and if he or she lived long enough there could be a 14 year extension. In the mid 1700s the average life expectancy of an adult was 64 years. Creators could protect works for 44% of their lives.
Today copyright extends for the lives of the creators plus 75 years essentially providing a sinecure to corporations who amass copyrights, effectively limiting instead of promoting progress in the useful arts.
Meanwhile people keep doing what they always have done–making stuff and sharing stuff.
Let’s not forget that Google is a big corporate interest in all this. But I wonder if Viacom can actually prove damages. Were ratings down because Daily Show clips were on YouTube? Did ad rates drop? Did the company sell fewer Chapelle Show DVDs?
In other words could it be possible that Viacom’s commercial interest was protected AND something innovative was promoted?
We need copyright laws for the 21st century that protect the rights of creators in ways that continue to spur innovation and time may not be the difference maker anymore.
The thread on Techmeme is predictably enormous. My favorite quickie analysis come from Carlos at Techdirt:
The suit illustrates Viacom’s misunderstanding of the web and YouTube: its claim for $1 billion essentially says that’s the amount of money it thinks it’s missed out on because of YouTube (just to put it in perspective, Viacom’s 2006 revenues were $11.5 billion). That’s pretty ridiculous, and should Viacom’s own video site ever become popular enough to deliver similar viewer stats, the revenues it generates will underline that.
As my good personal friend’s experience with the legal system recently reminded me, he with the most money, the most time, the best lawyers and the most balls, wins.
Viacom (and Sumner) has a lot of balls and meets the rest of the criteria pretty well. The bottom line is that they are hoping for a chilling efect on the rest of the market, using FUD (fear uncertainty and doubt) as their main weapon, and going after the deepest pockets.
Should be fun debate and a great soap opera along the way – I hope Google uses its deep pockets to defend this vigorously, perhaps we can find a way to use a wiki to crowdsource their legal defence?
[...] Like I wrote yesterday, maybe it’s time to rethink copyright law along the lines of its original intent (to promote the useful arts and sciences) and using limiters other than time to protect the limited interests of creators. [...]
I also wondered how Viacom plans to show damages. I’ve always thought that, if anything, short clips from TV shows actually promote the source shows and, so long as the posted clip isn’t an entire episode or movie, drive people to consume that source work. I can’t count the number of times that I’ve had a friend send me a clip on YouTube of some funny thing from a TV show that sparked me to check it out when I otherwise would have never given it a chance. Even if you throw out my anecdotal claim of clips driving consumption, watching a 30 second clip of the Daily Show isn’t the same as stealing a box set of season DVDs.