posted 14 March 2007

Muy interesante, no?

1. How do you feel about Viacom's $1 billion lawsuit against YouTube?
Media companies need to protect their rights 18%
YouTube and media companies should negotiate a deal 29%
YouTube shouldn't be liable at all 49%
Not sure 5%

So it was pretty inevitable that if you took a site based on profiting off of massive copyright infringement like YouTube clearly is, then gave it a parent company with gigantic cash reserves like Google has (that's $10 billion and counting, folks), somebody in the media industry would decide it would be more profitable to just take them for everything they have rather than merely a share of advertising revenue.

And to be fair, the media industry does have something of a point. They hired the artists, the equipment, the sets, the buildings, the producers, and everything, spent years making all this content, and then YouTube started selling that content to other people, and has the gall to suggest that only a portion of that money belongs to the media companies. Yes, YouTube are providing a service, but nobody suggests that the guy caught selling stolen goods out of the back of his truck should be allowed to keep a few bucks because $20 TV sets are a service that everyone loves.

So like Napster, like KaZaA, like Morpheus, YouTube is going to go down and the media companies will fight over the scraps. That's not interesting, it was merely inevitable. What's interesting to me is: what the fuck was Google thinking when it bought YouTube?

Yes, YouTube announced a few major content deals with media companies immediately prior to the acquisition. Were they seriously under the impression that this was a nut they had cracked, and the other media companies would follow sheep-like into the fold? That seems an extraordinarily naive view. But in many ways Google is a naive company when it comes to copyright, for instance:

  • their genuine surprise at poor customer reaction to the announcement that GMail reads your email to discover what ads to show you
  • their "why are you pissed off?" attitude to newspapers whose content is being excerpted on Google news
  • the Google Books program, which was pretty obviously going to get in trouble for scanning in the content of thousands of books and making it available online for free
  • Plus, of course, Google Video, which was doing exactly what YouTube is doing, just less successfully

It seems in their headlong rush to make the world's information available for free, they've forgotten that not all the world wants to give away their information for free.

But the results of that CNN poll interest me enormously. We know, for instance, that ISPs are not liable for the content their users send and receive. Should GooTube get a similar dispensation?

The legal immunity of ISPs is based on twin overriding factors. Firstly, practically speaking, it's near-impossible to (cost-effectively) censor Internet traffic. The only place you might attempt to do so is at a very high level on a very large scale. Britain (via BT, which powers all but three or four of the ISPs in Britain) censors child pornography at the national level by blocking access to servers known to host it. The other country is China, which has lots of money and overriding ideological concerns.

The second, legal factor is the doctrine of "substantial non-infringing uses". This is why VHS players were legal, why cassette recorders were legal, and any number of other once-controversial technologies. Does YouTube have substantial non-infringing uses to fall back on? Does user-generated content outweight pirated content on their servers? Who knows?

Well, Google knows, presumably. Even if Google wasn't YouTube now, Google is the world's premiere* engineer of search: solving the mere problem of locating infringing versus non-infringing content shouldn't even make them break into a sweat. But they've got a catch-22: if they admit they can use their mighty search to prove that YouTube is majority non-infringing, then why can't they use it to censor out that infringing content in the first place? And, let's face it, the chances of it being majority non-infringing are low. So they're pretty much hoist by their own petard: either they admit they can't find stuff, which damages their credibility (and would probably be a lie), or they admit that they can, which opens them to legal liability.

But back to the poll: the majority of people don't want them sued. Shouldn't this mean that the law is wrong, and we should just declare YouTube a "video ISP" and waive liability? It would be nice, but it's not going to happen. I bet a majority of people didn't want Napster sued, either. This is because the majority of people (a) do not work for media companies and (b) like getting stuff for free. Just because it's popular doesn't mean it should be legal. So now what?

Well, I can't really see this going the big G's way. They've got a gigantic legal liability on their hands, and the wolves are circling. They're going to have to clamp down on YouTube, which will kill its popularity in favour of some other video-sharing startup that hasn't been sued yet (a la the Napster to Morpheus to KaZaA sequence). On top of that, they will probably have to throw a load of those cash reserves in the direction of the media companies, who will absorb the money and return to their caves to peddle their old, broken content-distribution model for a few more years. This isn't the end of Google, obviously, but it's definitely the end of YouTube, which is sad. It was nice while it lasted.

Loyalty note: "premiere" is not the same as "best", as any marketroid will tell you.