You Go Viacom !

Not a stretch where I would come out on this, but it never ceases to amaze and amuse me how liltle understanding of the content business, or the business world in general that many in the blogosphere have.

Let me provide a simple scenario for you.

HBO. HBO charges a monthly fee to subscribers. If someone can watch an HBO show on Google Video or Youtube, even if its divided into 1,3 or 6 parts and re assembled into a playlist, they have far less incentive to subscribe or retain their subscription(s).

HBO in turn, syndicates those shows to cable networks. As an example, A&E paid a reported $2.2 million dollars PER EPISODE of the Sopranos. If the content is available online, do you think maybe it might reduce the value to A&E and HBO of the Sopranos ? And thats before we even get to overseas syndication. Youtube and Google VIdeo have a great deal of popularity overseas because in many cases US shows are not as readily available. Online international viewing reduces the international revenue opportunity.

THen of course there are DVD sales. Youtube downloads every video right to your PC. Google Video not only downloads to your PC, it provides the option to convert it into a PDA format including the Ipod.

So tell me why it makes good business sense for HBO to let users post the content they sell for a ton of money ?

Now some of those who are so self absorbed in net culture and have no idea how the real world works might think that all of this leads to more viewing and consumption. Maybe it does. Maybe for some shows, like those on broadcast TV, it really does help to have as much promotional video for the show, even to the point of full episodes available both on Youtube and Google Video. There are definitely situations where it could help a show gain viewers and increased sales of DVDs. All of which has nothing to do with whether Viacom or any content provider should let users upload video.

I have a secret for you. ITS EASY FOR END USERS TO UPLOAD video to Youtube and Google VIdeo. ITS EASIER FOR THE CONTENT OWNER to do the same thing.

VIacom doesnt need John or Sally to upload video for them. They are more than capable of doing it themselves. If Viacom wants to put up snippets, scenes, mashups, mockups, quarter, half or full episodes of anything they own, there is nothing to stop them. Its their choice. If they are smart, they will fill every Gootube Server they can reach with their content in a manner that drives viewers back to Viacom properties. They will experiment with every option, including those that engage and involve their viewers, to see what works and what doesn’t work and what makes them the most money. Why not ? Google is paying for all the bandwidth. And by the way, if the content owner uploads a ton of content and DOESNT do a deal first with Gootube, Gootube cant sell a nickels worth of advertising on the play pages.

And while they are experimenting , they should continue to sue the hell out of Google. Google blew it. They had no confidence in user generated content generating enough traffic to drive Youtube so they closed their eyes to the obvious. There is absolutely no value to a media company in letting users actually upload video. If they want to know what users want, they can create their own version of twitter that lets people tell them “what they want to watch right now” and respond to it.

My hope is that this lawsuit is not a negotiating ploy. I dont think it is. Why ? Because there is no downside to Viacom to run this one out to the end. If they win the suit, they make their Billion Dollars, which given this lawsuit could take years, could grow to 10s of Billions in damages if Gootube doesn’t take any action to stop the ongoing infringing uploaders. If Viacom loses, they lose legal fees of course, but Google still has to negotiate to get their content. The only real hassle is that Viacom must continue to send takedown notices. Thats such an easy choice, 10mm in legal fees vs the potential for BILLIONS and BILLIONS of dollars. Its so easy, that I expect many suits to follow this one.

So who wins ? On the legal side, I wont pretend to be an IP lawyer, but I will invoke my blogger’s right to speculate on some of the Safe Harbor Issues, so here goes.

On the issue of Red Flag Knowledge of Infringing content, thats an easy win for Viacom…”Mr Schmidt, have you used Youtube ? What have you looked up in your searches ? Google captures this information doesnt it ? Could you turn over your searches for the last 12 months…Oops. Who knew you loved Beavis and Butthead and won’t miss the interviews on 106 and Park.” Lucky for Eric, mini piratebays run amok on Gootube. People take ownership of shows and even genres and upload the same show(s) over and over , switching IDs when the previous ID is cancelled. They are there working just like piratebay and bit torrent trackers, switching IDs rather than having to change servers or URLs. Bottom line is that Gootube is a haven for pirates operating under Gootubes cloak of respectability. The sad part is Google Video in particular makes it easy for people who could never figure out bittorrent or even know what it is in the first place to download videos. Here is where eps of Entourage of easily available.

I cant imagine the powers that be at Google and Youtube havent used their own product and its features with infringing content.

Then there is the issue of what business are you in and removing repeat infringers. In previous cases, there was always a financial link between the “Service Provider/Host” and the uploader. Ebay knows their customers. Loopnet knows their customers. I happen to believe that its key that the “Service Provider” have a real business and infringing action by its users is as much a problem to the Provider as it is to the copyright owner. An ISP makes money with the monthly bill. Ebay makes money from transactions. A real estate hosting company makes money from listings. They all know exactly who their customers are and if one of them uploads infringing materials, they can actually identify the person and if they do it repetitively remove them. In either case, it doesn’t change or impact their core business and it helps identify those who dont respect copyright and gives the content owner the option of taking action.

Gootube has no earthly idea who their users are. They make no effort to find out. So if someone wants to repetitively upload movies, shows, whatever, they just jump from user id to user id.

Finally, this last point goes to the heart of how poorly Gootube relates to copyright law in general. THe DMCA Safe Harbors as they are written will not exist for very long. You can bet the same companies that spend tens of millions of dollars to extend copyrights to ridiculous extremes, or that want to push for truly ridiculous things like a Broadcast Flag, or the new Webcast Royalties, will spend whatever it takes to get the law changed to their liking. Just as they have done multiple times before. One thing is certain, our lawmakers and lobbyists are relatively cheap compared to the dollars at stake here.

Google may not know it, but they have already lost. They will lose this case if its fought to the end, and whatever moral victories they may be able to gain in a legal battle or settlement will be ripped from them when the DMCA is changed. Then they will still have to negotiate with copyright owners to get their content. THe entertainment industry may not be great at many things, but getting copyright law changed to meet their expecations is one thing they are better than any one at.

91 thoughts on “You Go Viacom !

  1. Why does YouTube get $1.6b? It\’s not because all the viewers are tuning in to see Sally dance with her cat. These companies get financing and build out all these great platforms, put money in there pocket, then expect the content players to show up and play in their sandbox based on their rules. They have had a relative pass from Wall Street.

    Comment by coskunlar vinc -

  2. I don\’t always agree with everything you have written about YouTube, but I certainly agree with the following quote:

    \”THe entertainment industry may not be great at many things, but getting copyright law changed to meet their expecations is one thing they are better than any one at.\”

    I believe the DMCA is currently broken and needs to be fixed in order to address consumer facing file storing products, particularly those that are indexed and can be searched and reviewed by other users.

    It will be very interesting to see how this case unfolds, as well as the future of the DMCA in the coming years.

    Comment by master-article -

  3. Mark,
    Give it up. When it comes to understanding why the creators of entertainment content would want to protect their creations from a bunch of cheap bastards who only want to steal content, the vast majority of netheads are CLUELESS. You, I and a few others are alone in our clarity between right and wrong. Right: I want a can of Coke so I pay for it. Wrong: I want a CD or movie so I steal it. Seems pretty obvious to me.

    Comment by Jack Taddeo -

  4. John and Sally upload a copyrighted video. I watch it along with 100, 000 other people; \”We are family.\” We like it, we go watch the series on TV or go by the CD. I have discovered so many bands on You Tube and I go and by their music. I am waiting on an import from Germany right now. Viacom is creating such ill will for themselves and their brands, poor MTV, to have to take this kind of hit. I smell falling ratings.

    Comment by lloyd Allen -

  5. Mark- do you support and will you contribute to the continued purchase of IP laws by content owners? While the current trend is perhaps a likely prediction of what\’s to come, for those of us without a horse in this game, there is no reason to root for that to happen. (outside of the long term access to works which surely would never have been created if the artist hadn\’t been thinking about his great-grandchildren being able to live the high life on his royalties).

    While I have no illusions as to the fact that IP laws can be and are bought, why not root for the company with the cajones to to buck the trend? Lobbying dollars change laws, but so do large shifts in behavior. Truly different approaches to technology make this happen. People just trying to catch a buck off the shift end up fighting the inefficient (even if personally pragmatic) battle to constantly buy a legal leg up.

    Comment by Glib Grouse -

  6. Just because it\’s digital doesn\’t make it free.

    Comment by Jax -

  7. Mark, there is more to it than just the business side.

    Viacom is ruining its image. Boycott movements against Viacom have already begun by many YouTubers. Average people will hear about this and think badly of Vicom.

    Do you think YouTube should regulate ever little bit of content uploaded. They already do not allow porn. One of the reasons people like YouTube is that they can talk about anything and upload any videos and theyare almost instantly posted for anyone to see.

    The truth is that Viacom does get publicity for its shows by showing them on YouTube. People still have to watch the premieres of the show on tv.

    By the way.. Viacom owns iFilm, which is a competitor to YouTube. I think that is the major motivation for this.

    Please watch my video on the subject:


    Comment by Boris -

  8. In January 2005, on this blog, you wrote:

    \”This is a call to action. Call your representative. Call your senator. Let them know that you respect the rights of the content industry, but that protecting innovation is more important. Our future could depend on it.\”

    I couldn\’t agree more. Let\’s hope that YouTube prevails, so that consumers are continually offered better, more user friendly products and services.

    Comment by Tim -

  9. You are absolutely, right.
    I like what fuckedgoogle.com says about it and i believe it.
    The youtube deal was just made to stuff some old boys network wallet with money not because it was a smart move.

    Comment by Daniel Eder -

  10. It will be interesting to see how Google, the 800 pound search guerilla, fairs from this lawsuit. I am assuming they will settle before this goes to court. If not they will probably loose and their stock price will take a hit.

    This lawsuit could open up the flood gates for more lawsuits to come. Google really has opened up a Pandoras Box with the purchase of Youtube.

    Comment by Zip Code -

  11. Hmph.

    http://www.boingboing.net/2007/03/14/viacom_privacyhating.html

    Comment by John -

  12. Contents have copy right protection and they do need to be proctected. Google has the ability to protect the copy right, they can easily filter the contents they put on the web. But they don\’t do it. They are no different then the pirated dvd chinese vendors selling on the street in China. Some media company choose to share what ever revenue google can get out of this, but some will not (viacom). I agree with Mark that Google will likely be liable. However, there is no easy way to stop the online pirates because the web is just too big. It is like trying to find a needle in the ocean (chinese say). I do think today everyone loves google just like the early days of microsoft. Google can do no wrong. I don\’t share the same sentiment. In a way, Google is slowly showing the same microsoft stradegy. What has google come out with an original idea? I cannot think of any!

    Comment by Chun -

  13. Missed the mark completely. Viacom is \”evil\” and antiquated. Ask anyone who has worked at a management position in their hellish environment. They knew for some time that content was being uploaded to Youtube and were happy to \”ignore\” it and reap the benefits used internally (mktg and focus group related) until they saw the dollar signs calling with the Google gobble-up. Suddenly, it was hurting them and their attorneys\’ were unleashed to craft their lame excuse. If they had half the vision and talent of the Youtube founders or any of people at Google, or for that matter on Mark Cubans staff, they would have been much better off.

    This is just another example of the need to revamp the copyright laws to be more reasonable and relevant to the needs of society. Laws should be \”living\” items that flex with the needs they are meant to protect. Nothing is absolute but death.

    Comment by Ken -

  14. I thought it was stupid of Viacom to give up the free advertisement on YouTube. But now, since YouTube can\’t find all the videos to take them down quickly, they are still up –giving free advertisement. All the while Viacom is free to sue Google for millions of dollars. They\’re smarter than I thought.

    Comment by WADemosthenes -

  15. Mark,

    Even if it doesn\’t fly the Skull and Crossbones, it\’s a Pirate Ship.

    The Captain and Crew pretend that they don\’t know who\’s on board .

    The sad part is………..they are allowed to sail with the merchant ships……….and dock in a Safe Harbour.

    I say scuttle the Ship, and Hang the Bastards.

    Randy

    Comment by Randy Geider -

  16. Hmmm…. why would I want to watch a whole show on such a crappy pixelated image? I\’d much rather watch it in HD.

    Unless they can improve the image, which they can\’t if they offer a free service, then it\’s the best free advertising you can get. But then again, this sort of this only gets that more publicity….. you\’re a fliipin\’ genius!!!!

    Comment by Bob -

  17. Mark, a few posts ago you said, \”Is there any more lame a comment than \”You just don\’t get it\”. Its a simple, dismissive phrase that says more about the person saying it than the person/organization its directed to.\”

    Then in this post you say, \”Now some of those who are so self absorbed in net culture and have no idea how the real world works.\” This is just another way of saying, \”those who have no clue and just don\’t get it.\”

    Way to argue your point by insulting and insecurely attacking the opposition. This always works better than an actual debate.

    Comment by Matt -

  18. As an average consumer, I\’d guess GOOG will lose it too. But I think it will get settled somewhere along the line before it goes all the way. I don\’t know how Google can consider what they do perfectly legal.

    Comment by maui -

  19. This all goes back to the issue of who owns content. YouTube\’s main advantage as a distributor is its enormous amount of user-generated content. However, many people want to see propietary content, not simply free content. Two million people want to see the next \”Ask a Ninja\”, which is fine to show on YouTube, but they also want to see Jon Stewart (which is owned by Viacom). If \”Ask a Ninja\” wants to give away his content for free, that\’s his choice. But if Viacom does not want to allow someoone to distribute its content, it has that same choice.

    Comment by Ayal Rosenthal -

  20. Doesn\’t Youtube still lose money? Do you really think they have a billion dollars to pay out in a lawsuit? I think yYoutube is no better than the old napster. It does have a better chance of winning the lawsuit though, because everyone is still in love with Google. The fact is no one will get 1 billion from you tube, because Youtube doesn\’t have it and Google just bought a majority stake in Youtube and kept Youtube as its own entity so they certainly aren\’t liable unless they really screwed up the transaction.

    Comment by pressure washers -

  21. Mark,

    Even if it doesn\’t fly the Skull and Crossbones, it\’s a Pirate Ship.

    The Captain and Crew pretend that they don\’t know who\’s on board .

    The sad part is………..they are allowed to sail with the merchant ships……….and dock in a Safe Harbour.

    I say scuttle the Ship, and Hang the Bastards.

    Randy

    Comment by Randy Geider -

  22. Yes, I agree that eventually youtube will not be the youtube people love today. These things take time though. As for your introduction about companies losing out when they paid top dollar for syndicates, not so much. Here\’s just a few reasons.

    1) The people using youtube to view a clip about a particular show does not want to watch the whole thing. In fact, they cant on youtube.

    2) Video quality is terrible. It\’s not like mp3s at all. There is a considerable difference in video quality to the real thing. Want to beat youtube mr cuban? Create a clone site with a low monthly fee that allows near hdtv compressed quality videos.

    3) It\’s not youtube you really have to worry about. Its torrents and basically just tvrip/movie piracy in general. Youtube is just a site people go to to watch 5 minute clips of various things for whatever reason. Why would anyone want to go after youtube when there are high resolution torrents floating around of movies and tvrips. Makes no sense to me.

    4) I don\’t have to list anymore. I proved my point.🙂

    Comment by brant tedeschi -

  23. When are the networks, music companies, etc going to get with the times and offer content online so people don\’t have to rip it off?

    Offer low res versions of popular movies so people will get a taste for it and buy a DVD. Or trailers, or deleted scenes that aren\’t on the DVD.

    I think they are missing the boat and are just suing Google because they see flashing dollar signs.

    Comment by Fractals -

  24. Revolt of YouTubers Not Surprising

    Comment by Dave -

  25. Mark,
    I know that you cant say it, so ill say it for you. The officiating in last nights game was a disater. Devon Harris gets assaulted driving to the basket, and has to leave the game, but no foul? Jerry Stackhouse gets used for a ladder and then tossed to the ground setting up a lay in by Marion, no foul? Dirks jersrey is being pulled as he misses the last shot of the game, no foul? Nash pushed off atleast 6 times last night, not called on it once. Once again, the officiating took the emphasis off the players, and played way too big of a role in the game. NBA officiating is terrible, and it is getting more and more difficult to watch NBA games. Im sorry that you have to put up with it!

    Comment by Heath -

  26. I really see your point; Mark you were right.

    I just can\’t see the PHD\’s at Google, letting this go to trial. I mean I would most defintly make them a better offer – or maybe Google thinks it can beat this?!

    -Rb

    Comment by Pallet Rack -

  27. Mark –

    I respect your viewpoint, I do. And I think you\’re right about how it will end up. But I don\’t necessarily think it\’s a good thing.

    What\’s missing from your post, above, is any mention whatsoever of the people who are actually making the clips that are being posted on YouTube. Plenty of talk about the corporation that owns YouTube, and plenty about the corporation that owns \”The Colbert Report\” and \”The Daily Show.\” But nothing about the minds and talents that actually produce the stuff that people want to see and how they might feel about it.

    And I guess that\’s inevitable. It\’s a corporate world. Still, it\’s hard to deny that \”The Colbert Report\”\’s Green Screen Challenge gained its momentum on YouTube, which helped a fledgling show find its audience. But nobody would think of asking Stephen Colbert how he felt about this issue, nor would his opinion matter. From a legal standpoint.

    Meanwhile, TV networks have been bending over backwards to get their people to \”leak\” stuff onto YouTube with plausible deniability. Because everybody wants to Go Viral.

    As I said, none of this matters in the world where one corporation slugs it out with another over who owns what. But there\’s a part of me that thinks it SHOULD matter.

    cheers,

    adam

    Comment by Adam FelbeR -

  28. This lawsuit has been in the headlines for a couple of days now. But, at the moment, a search for \”Colbert Report\” yields over 1700 matches on youtube. So obviously, Viacom has either reached some behind the scenes deal with Google, or they\’re not as offended/damaged as they\’d have us all believe.

    Comment by unyumm -

  29. Your post missed an important ingredient – the consumer. No one, least of all the owners at Youtube, ever expected that consumer generated content would take off like it has. Therefore, to believe that Youtube could have anticpated such is a folly, and further, even with better copyright guards, Viacom would have sued them anyway. The bottom line is this: consumers want involved with media, and as usual, the entertainment business missed out on an opportunity to accellerate and monetize this. So now, with their heads still stuck in the sand, they sue, sue, sue…instead of coming up with intelligent business models, or working with technology partners. Google/Youtube will win because they have complied under the DMCA rules to take down copyrighted material. Viacom will not only lose the suit, but will gain a black eye from the consumers–if Viacom had listened to them in the first place, they wouldnt be in this predicament.

    Comment by DudeAsInCool -

  30. Great Post!
    come on to the show tonight http://www.lifeonline.com/gdshop/radio/default.asp
    it starts soon, and join the rants. Its LIVE radio

    Comment by Jeff Johnson -

  31. Time will tell how this unfolds. What I can say now is this:
    The way people consume content is changing. Google is better positioned than anyone to monetize from this new way of consuming content. It is thus in the best interest of content provider to align themselves with Google or, at least, try to benefit from Google\’s actions or find ways of leveraging Google\’s power to find a new models that allows all parties involved to make money while giving users what they what.

    Viacom has just denied itself of the option to do so, so apart from \”risking a few 10mm in legal fees\”, they are also risking missing the wagon and being left behind their biggest competitors who WILL work with Gootube and find new, simple, and popular ways to make money form their content, without expensive attorneys.

    Comment by Dror Poleg -

  32. Mark, I agree with most of your post. What I found amazing was the stock price for Google has not reflected what is sure to be a severe financial issue for the future.

    Comment by Adrian -

  33. Hey Mark. Its a nice change to see the sharks chasing sharks and trying to eat thier own for a change. Thanks for the thoughts.

    Comment by Frankie from Lawnside -

  34. Mark,

    I watch video content to Youtube all the time. I live in Orlando, FL, and am currently in Dallas for tonight for business. I also plan on going to tonight\’s Mavs game vs the Suns via a scalper\’s ticket. Do I do these things because I am trying to push the envelope? No. I do them because they are less expensive ways to get some enjoyment out of my life. I\’d be more than willing to answer any survey questions you might have on the subject. (Without a subpoena, hopefully)

    Comment by Jon -

  35. The Mavericks need to start losing or something so that Mark blogs about something interesting again.

    Comment by Ryan -

  36. Hey Mark, you have a knack for words. Some peeps chop wood, you chop words. Seriously, what do you think of VUGURU? I saw the interview today with \”Disney Head\” on cnbc and I think this guy is clueless. He is revisiting his childhood. I think he misses his mother\’s breast. Topp\’s? He was asked why? and he said because. He was asked about management in place and he said I don\’t care. This guy swims with his rubber ducky watching re-runs of Quincy while his law firm, Smith & Wesson, due the dirty work. Seriously, beat this guy up and top 360 Mil for topps. Mark Cuban and Topps!

    Comment by Jeffrey Todd -

  37. Mark,

    Longtime fan, but you are waaaay off on this. Look if people would rather watch a crappy little window of video rather than the goregeous HD images that we pay for, I say go ahead. Has HDNet suffered for this? Are people watching the Mavs in 320×480 windows? Of course not. It is a viral marketing tool to generate interest, not an end all entertainment destination. And as one who has used his position and influnce to \”you tube\” the movie industry by encouraging DVD and Broadcast releases on the same day as films are released, well that kind of smacks of the hypocritical, does it not? THERE IS NOT BAD ADVERTISING.

    Losta Love,

    Jester

    Comment by Grandjester -

  38. I agree completely. You had to know this was coming… I\’m just surprised that it took this long.

    Comment by David Culpepper -

  39. Mark, first time to your blog, great stuff. I am very concerned about the general state of the content creators\’ copyright and its all too often blatant infingement by these kinds of entities who have built up merely perceived market value propositions using this whole hokey targeted key word driven pay per click advertising scam, that we see so prevalently. I am curious what you think about this form of advertising, its effectiveness as a means to \”educate and inform the target audience of the effectiveness, quality, features of the product or brand..\” or, the clinical definition of what advertising is supposed to do. I can\’t believe that the more often accidental and spastic click of a momentarily distracted or tricked user, on an arbitrary text link really does anything to sell product effectively. I think a text link is nothing more than an uninteresting banner ad we had all learned to ignore 7 years ago. I predict we will also learn to ignore these text ads. Very shortly. But back to copyright infringement, if the Gootube videos generate income for Google, without license by the content owner, I think that is the ultimate test of the DMCA. Not only should a cease and desist letter be sent, but the violator should pay the owner of the copyright infinged, the reasonable licensing fee during the period the content was posted and generated income for the violator. I\’ll take this one step further to pay per click ads, that are placed on pages that contain ANY copyrighted content (Text included) ought to pay the content owner the similar reasonable licensed use fee. Especially when they feed in ads by scanning the content of that page and try to cop a sleazy piggyback feel by matching ad keywords to words in the article. Nothing will get the current gaggle of google advertising companies to stop this faster than the risk of a potentially huge post-posting license fee check made out to the owner of content whose copyright was violated, one that happened to be watched a gazillion times before they realized it and pulled it down. Great piece, (sorry about the gaggle google and post posting puns)
    B

    Comment by Bruce -

  40. > Mark you did call this some time ago,
    > but the stock market is viewing this as
    > a \”non event\” based on GOOG price. Why?

    Because Youtube and Google are separate legal entities. If more lawsuits come, Youtube simply might go bankrupt. Does it affect Google? Not at all. All that is at stake right now is their one-time investment of $1.65B – and this has been priced into the GOOG stock already.

    I suspect that Google saw all this coming right from beginning, probably just wanting to eliminate Youtube to pave the way for Google Video. They destroyed a competitor for some change. So what?

    Why they didn\’t shut the service down right away? Easy – bad publicity. It doesn\’t look good (read: \”is evil\”) to take over a competitor and shut it down the next day. Nope. They need someone to BLAME. They found this one now: Viacom.

    Comment by Mark Z. -

  41. Mark, Your blog is awesome and insightful. -But the Mavs— all i can say is wow… and what a turnaround….

    However, I don\’t really understand what the good would be of pitting google and viacom together… when some other foreign site can rise to power…

    I mean think of the barriers to entry… Bandwidth.

    Comment by Hyrum Steed -

  42. I\’ll make this simple. Basically there are two issues here and people have psoted comments on both sides.

    1) According to my understanding fo the DMCA, viacom has a very valid case, why shoudlnt they sue?

    2) I do agree that youtube represents a paradigm shift in how people want their content and that this needs to be dealt with but youtube is just a representation of this idea, suing it wont kill the idea itself.

    3) We need this lawsuit to clear up ambiguous language in the DMCA, that is reason enough for it.

    Comment by superdave -

  43. Google/Youtube\’s current strategy is to build a massive userbase by using copywritten content for free and then forcing the content providers to the negotiating table from the position of strength with them being the 800lb gorilla.

    Its also clear that Viacom, Universal ect are about to set a precedent that :

    a) is valuable when negoatiating other deals with other participants in the future.

    b) is valuable in front of Congress, when they try to sort out the issues of copyright obligations

    c) is valuable when setting rates for copyrighted material.

    I agree with Mark \”THe DMCA Safe Harbors as they are written will not exist for very long\”

    Mark is spot on in his analysis. The major labels ironically enough, let MTV build a billion dollar business on there backs…Viacom wont make the same mistake. In the end after Viacom ect wins, they will have the control to decide what to charge and where to put the content they own. YouTube and all the rest will have to rightfully so, pay to use someone else\’s property and Viacom and others will have lots of leverage. The rich deals will be with the Viacoms as the YouTubes will need the content. In addition in legal matters they will have a long list of lucritive deals to point to as \”precedent.\”

    Why does YouTube get $1.6b? It\’s not because all the viewers are tuning in to see Sally dance with her cat. These companies get financing and build out all these great platforms, put money in there pocket, then expect the content players to show up and play in their sandbox based on their rules. They have had a relative pass from Wall Street.

    I applaud the entrepreneurial visionary and have the highest respect for them, however this stealing others property party might be coming to a end…

    Comment by Nicky Kalliongis -

  44. \”You\’d think that they\’d learn from what happened with Napster. Did destroying it stop piracy? Hell no, it made it worse.\”

    It\’s amazing to see the total business ignorance of a lot of bloggers. Imagine if you went into a grocery and decided to eat an apple. A reasonable businessman would say that you should pay for it. A blogger would say that you\’re \”promoting fruit\” and should be encouraged in what you\’re doing.

    Comment by Phil -

  45. Mark you did call this some time ago, but the stock market is viewing this as a \”non event\” based on GOOG price. Why?

    Comment by Joe Duck -

  46. For at least a few years, my company (GIS Networks), provided audio and video streaming services to AudioNet/Broadcast.com. One of the radio stations that we broadcasted over the Internet was Xtra Sports 690 (Los Angeles), the flagship station for the Los Angeles Kings, UCLA Bruins, and San Diego Chargers. I recall at least three or four threatening phone calls coming in from the NFL demanding that we shut the feed off during the live SD Charger Internet broadcast due to rights issues. We keep the feed live of course becuase we wanted to be part of history in the making — Mark C. later sold Broadcast.com to Yahoo. I can\’t believe the timing and execution of the deal to Yahoo – perfecto. I am glad I listened to my gut. There weren\’t too many companies that had the opporunity to deliver live audio streams over the Internet at a time when most people had no idea that audio streaming was. I think we were the second or third company to do this. Funny to see Mark\’s words about YouTube. I bet he is glad to have sold to Yahoo when he did – might have dodged some bullets.

    Comment by Jordan Blum -

  47. Mark,
    I find the DMCA comments the most interesting. Where do you see the telecoms coming from in any DMCA changes? They were the ones who put in the safe harbor language, right? Has their position changed? Maybe just their power?

    Comment by Brett -

  48. Mark:

    Thank you for finally explaining how the real content biz works

    It amazes me how Silicon Valley cant see the parallels to their own business model.

    Also, they are cheating a lot of other ancillary groups of revenue, i.e., Writers, Actors, and Stagehands etc. You might want to explain that to them also

    Thanks again

    Matt

    Comment by Matt Cook -

  49. Mark, are you liable if I post copyrighted text in this blog comment? If not, then why is Gootube liable for the videos posted by their users?

    Comment by John Bush -

  50. Mark predicted it months ago, and even an average betty can understand Tristan\’s point about a Napster repeat. There are a lot of smart people commenting here, but layman common sense says GooTube is ScrewedTube.

    Question: Is this good news for the little gal/guy content producers? i.e., will the video services like YouTube be more inclined now to seek/sign deals with independent producers especially in spite of Viacom et al?

    Comment by Average Betty -

  51. Hmmm….for every person that says a Viacom should just give stuff away for free isn\’t aware of the transition occurring. At some point, it will make economic sense to do what people want. But to read stuff like this…

    \”You must have missed the tv pros talking about how viewership went up for CBS shows after posting on YouTube.\”

    or

    \”This is purely an issue for people who are already rich who want to exploit their IP to become richer. Real artists are happy when people see their art.\”

    …miss that there are tipping points in online advertising, shifts in viewership THAT HAVE NOT YET OCCURRED. Tim O\’Reilly had a great post about current advertising online at $16.8B vs. all TV advertising at $80B. That\’s a crapload of dollars that have not yet transferred to online business models and it costs a lot to put on shows, pay talent, reporters, an infrastructure and more.

    When I get into arguments with people and they toss in my face the \”Well…look at what the MPAA did trying to kill the VCR…the salvation of the movie business\” I concur but point out that it took YEARS for the economics to catch up and the same thing happened with DVD\’s.

    I don\’t work for free though I invest A LOT in my blog, my free \”Rise of the Participation Culture\” report which people thought I was nuts to give away free but its generated a lot of business for me. If someone could digitize my value prop (my intellectual capital for my management consulting) and give it away for free, I\’d starve.

    The naysayers would too. That said, are there any videographers in the audience that would like to do a 10 day shoot handling all the editing, sound, lighting and obtaining talent for a video that will be given away for free? I didn\’t think so…

    Comment by Steve Borsch -

  52. Youtube will be shaved, sterilized, and destroyed. Mark saw this coming a long time ago. Actually, we all did, it was called Metallica vs Napster.

    Comment by Tristan Yates -

  53. The silliest part about the rationalization of this issue is the justification of action based upon desire. I want a Ferrari for free, but if I call a dealer or Modena they aren\’t going to just give one to me. If I see one on the street and just \”borrow\” it for a jaunt around the block, I\’ll still end up in the slammer. The drive may make me want one even more, but its still stealing.

    What someone wants is irrelevant when it comes to the rules. One could argue that its why rules were created in the first place, to correct for improper and misplaced human desires that supplanted the rights of others.

    Some might say that the Ferrari is tangible, but content isn\’t. Both have resources that go into creating them, and the builders/creators do so with the expectation that there will be some return for their efforts. Tangible or not, its still a product.

    As an aside, My buddies and I had a pool going on when Mark would post on this. No one picked anything later than today (3/14)…

    Comment by Steven Hammer -

  54. It comes down to how the courts interpet copywrite law i think.

    Let me ask you this mark.
    Do you think that Domains of trademarks or companies names shouldnt be sold to people other than the holder of the trademark or company? – email me. id like to hear your response.

    Comment by Mike Verinder -

  55. Copyright protected content is Viacoms (and like media organizations) business! Any goofy argument against these companies about the \”rich getting richer\” is BS! (Quit the Peace Corps and start our own business, then see how you feel). Google got cocky and forgot that the ball is in the content provider\’s court. Granted, in some instances, a partnership with Youtube may beneficial for content providers. But Youtube relies on their content, not the other way around. When Google first bought Youtube it was the talk of the town. The media companies said \”Wow, we need to get in on this.\” The hype has subsided and companies like Viacom said \”Wait a second, we create and distribute the content Google is essentially making money off of; they should be coming to US with offers!\” These companies will get together and crush Youtube if Google continues to play coy. NEWS FLASH: If college kids don\’t have to pay for content they like and consume, they won\’t. So it\’s hard to argue that these user uploaded videos bring MORE revenue to content providers. I think Mark\’s idea about beating Youtube at its own game with promotional spots is good, but it will really just help in the dilution and ultimate demise of Youtube.

    Comment by Andy P -

  56. I agree that content owners should take advantage of the free demographic info offered by the youtubes and put their content out through them.

    However, the tough part is now anyone can do a youtube and share their video content. There are hundreds of sites like it now.

    The content owners need to step back and look at the value of the information available to them from these sites, because sharing won\’t stop.

    Comment by Tim Taylor -

  57. If GoogTube, er.., YouGoog shows for free what I\’m paying DISH to see, then who is getting ripped off? Me, as well as the copyright owner. As to the crappy viewing quality of GooGoob video in flash, and whether it threatens or diminishes the value of the high-quality original, that\’s like the crappy quality t-shirts sold in alleys near rock concerts. By buying crappy copies, you get ripped off, as does the person selling the authorized versions.
    YouTube exists because it replays the copyrighted content of others. Check the play counters for most user-generated videos, and it is dwarfed by the numbers of times that high-quality video is replayed. Dealing in unauthorized video content is a cornerstone of YouGOOg\’s business model. The law, and fairness, cuts against that model.

    Comment by Thomason -

  58. the entourage example that cuban posted is great. why would I need to pay my $10 a month for HBO when i can watch their shows for free online? What if other subscribers start to do the same thing? HBO starts to lose money, the value of their shows go down, etc, then they will sue google.

    Just because everybody is doing it is not a good reason not to sue. If google is profiting from it and youtube profited it from it by getting paid 1.6 billion on content they did not own, I want a piece of that pie. If chad hurley and steven chen got rich because of my content and did not pay me anything, I would be pissed.

    Comment by ashwin -

  59. Want to pick up on 2 points. First, if I pay for HBO already, I expect in the near future to be able to access HBO content from multiple devices for no additional costs. Key here is the issue of security for HBO which is one of the key things that Eric Schmidt has been promising for a long time and hasn\’t delivered, hence Viacom\’s lawsuit. Second, Google is trying to be the ad broker for the world across all media. Look out for YouTube becoming an in stream, ad supported, behaviorally targeted property with generous ad revenue sharing with the originator of the content. Look for this to be equally applicable to individuals (who generate the content, not just upload someone else\’s) and to corporates. Will the Viacom\’s of the world be happy with that? I believe they will. This is about Google getting their act together on the ad supported model and then selling it to the corporates. Whilst I appreciate that you hope this isn\’t a negotiation, I believe it is and I think that we\’re not going to see the clock rolling back. Behavior has now officially changed amongst the user base and the next thing will be the revenue models that emerge around it to stop the bleating from the content generators.

    Comment by Simon -

  60. You go Bell !!! You go Salon!!! LOL LOL LOL.. poor mark.. again he is behind the curve. The law is on Googles side. Cases like this take years to mature… they will negotiate if they are smart. http://slate.com/id/2152264

    Comment by Rat -

  61. Won\’t Viacom look kind of silly when GooTube calls The Daily Show producers to the stand to testify – as they have already admitted – to uploading their shows to YouTube all the while Viacom was sending takedown notices.

    Comment by Anthony -

  62. #4
    \”If I burn mix music CDs (copyrighted material), and send it to my friends via USPS, would it be fair to sue USPS, since obviously they are delivering the CDs? What\’s the difference?\”

    If UPS knew and benefited from shipping this content, then \”Hell yeah\”!

    Comment by Vidizer -

  63. the ultimate video outlet is coming: The Hollywood Project
    Keep your eyes open!

    Comment by jedi master -

  64. I know they have a legal case, but I still think they lose.

    Youtube is really successful with clips. You\’ve discussed how unreliable the internet is at streaming, and that\’s 100% correct. I\’m sure a few eccentrics are logging into Youtube to watch paid TV, but that\’s hardly a billion dollar business.

    As far as killing Youtube, et al, I don\’t see it happening. You want to paint them as napster, but Youtube actually provides a unique service. You say the networks can provide this, but they can\’t. You need a fanbase doing clips for them to get traction. Just compare what\’s on Youtube for the NBA compared to NBA commercials. I know NBA.com now has clips of top 10 dunks, etc. and that\’s great and that\’s smart, but you can\’t bring non-fans in by hosting on NBA.com.

    They should just tell Google to make any clip longer than 10 minutes go through a certification process to check for originality. Force them into the clips and original content business. I think you\’re right, it\’s a nudge-nudge, wink-wink situation with full shows.

    But Youtube doesn\’t threaten Viacom\’s/your business to the degree that cracked HD content does. You need to create a streaming HD business where the content is never physically available for hackers to exploit. Where the content isn\’t burned overseas and then pirated like mad.

    The same folks using YOutube for whole episodes are crazy enough and motivated enough to swap files online somewhere else. It\’s time to let SD content go – at least in clip form – and focus on HD.

    Comment by solomonrex -

  65. oh please… there is a reason why you did not sue YouTube. because you know deep down (or your legal team knows) their really isn\’t a case here, no matter how much you hate YouTube. (they are not directly profiting from those clips. period.) This is why you post ur view, to get a feel for the situation at the user level… to alieve your lawyers uncertainty.

    Viacom is now a freaken laughing stock. like a 3yr old who wants ice cream instead of dinner… all they know how to do is cry to get their way.

    any action viacom claims is laughable. i wrote why here http://internet.seekingalpha.com/article/29526

    Comment by echotoall -

  66. JDA,
    Aren\’t most blogs self serving? That\’s the point. Get out your opinion on things that matter to You. You have the choice of not reading it, but don\’t criticize a person for having an opinion. Just state your disagreement with it.

    Comment by Joe -

  67. They\’re doing this with your content, why don\’t you file? My guess is because you\’re better at complaining than actually playing – just like in the NBA. You make a big fuss about a hot issue that somehow affects you financially and use it to draw more attention to your products… you make it very hard to give a sh*t about your blog or views, when its clear all you really care about is how this affects Cuban.

    Comment by JDA -

  68. There\’s three things wrong with your HBO argument:

    1. People are doing it anyway
    2. HBO isn\’t going to stop people from doing it anyway
    3. Oh yeah, and people are doing it anyway.

    So here\’s HBO\’s choice:

    1. Give consumers what they want.
    2. Stand by and do nothing while consumers take/build what they want on their own.

    Neither one of those options involves continued lucrative deals with A&E. Good thing or bad thing, that\’s just reality. Youtube is the world we live in now.

    You\’d think that they\’d learn from what happened with Napster. Did destroying it stop piracy? Hell no, it made it worse.

    If they destroy Youtube is that going to make the threat that Youtube represents go away? Not a chance. Right now, YouTube is their best friend because it\’s effectively stealing traffic from higher quality, HD torrents. Kill Youtube and you might just find a lot more people downloading those full episodes rather than enjoying the clips at a place that they can at least have *some* control over.

    Comment by Eric -

  69. Am I the only one that doesn\’t use YouTube? With the exception of seeing Sadaam hanged, I\’ve never watched a video on YouTube, and I can\’t see me needing to any time in the future. If there is a show I want to watch I\’ll buy it from Itunes, or if there\’s a game I want to be able to watch over and over (Kobe\’s 81 comes to mind), I\’ll buy it from Google Video. I have no interest in watching poor quality, pirated shows that have been cut in to multiple parts. My feeling is that most people feel this way, and only go to YouTube for stuff they can\’t find elsewhere. I just fail to see this as being a big issue for the average consumer.

    Comment by Joe -

  70. Your scenario is flawed. You speak to subscription revenue lost when viewing online. The issue is that subscription revenue models are dying. As cameras, movie-making, and distribution technologies become less expensive, user-generated content will be king. I have HBO, Showtime and Cinemax at home that I pay for, but I rarely watch any of them. I do, however, watch Ze Frank daily.

    You can always tell when a revenue model is dying. That\’s when the attorneys come out and try to squeeze the last dying dollar out of it.

    Comment by Doug Karr -

  71. I have adopted the policy that people who advocate piracy for any reason, or defend those that enable piracy, aren\’t important enough to listen to their arguments. \”In one ear and out the other,\” so to speak, they can take their place with the communists and PETA.

    You have brought up one of the best counter-arguments to the common \”but it builds popularity in the brand\” piracy-argument. \”If they want to, they\’ll do it themselves.\” That\’s great.

    I also like \”TANSTAAFL\”. Piracy accounts for billions of dollars of wasted bandwidth, at a time when we\’re talking about spam email bogging down the Internet. Electricity requirements to run all of this are through-the-roof, in a time when rolling black-outs plague California and Al Gore is winning Nobel Peace Prizes for a scare-piece documentary. Don\’t forget to pay your server farm staff, and keep everything updated and repaired. Piracy isn\’t \”free digital copying,\” it uses real resources, with the true cost hidden by the buy-in-bulk paradigm of those resources. Rough estimates come up to about $1USD/GB for current costs of hosting and transfering data across the Internet IF you can guarantee 100% uptime and 100% bandwidth utilization. Indeed, the price is so high, that any downtime you have, you can watch the seconds tick by in cents.

    Comment by Sean McBeth -

  72. This is just simply something you called months ago coming to pass. Anyone with any sense knew this was coming.

    Comment by Rebeccalee Coventry -

  73. http://action.eff.org/site/PageServer?pagename=ADV_homepage

    Comment by Andrew Davies -

  74. Yep, sorry. Totally missed the point. The real argument should be closer to \”should content be locked up by default, or open by default\”.

    And the answer should not be, \”whoever has the biggest legal department and the most influential lobiests\”. We do live in democrocies (most of us reading this anyway). We actually do get to decide how the copyright ballance works.

    And I am having my say here.

    Comment by Andrew Davies -

  75. Looney Tunes (Warner Bros Online) is using YouTube exactly as you suggest. They post short cartoons, package them up with info about the web site and use them to whet everyone\’s appetite for more. Here\’s an example…

    Comment by Bob Russell -

  76. hi mark!
    i am here in china!
    the maverick has a good maybe the best season this year, i am looking forward to seeing the first NBA champion.
    however, i disagree with the choice that you send nash away, it is not a reasonable deal.

    Comment by J. -

  77. I thought that you favored a technical solution to dealing with YouTube hosting copyrighted clips (from your post about the Oscars). Why the love for lawsuits on this?

    In my opinion a lawsuit isn\’t going to help control copyright issues. It just makes lawyers richer.

    Comment by Matt -

  78. Mark, The thing I just can\’t get my head around is how your approach to Gootube is consistent with your having funded the defense of Grokster. I\’m not calling you a hypocrite, far from it. I\’m trying to understand whether there is a consistent philosophy guiding these two apparently opposite positions, and actually understand it if there is one. Nothing wrong with someone\’s thinking evolving either. Nobody can say you\’re not thoughtful on these.

    Comment by Brad Hutchings -

  79. Finally!

    As far as I\’m concerned, Youtube grew large by blatantly ignoring copyright. As well know, pirates are the enemy of civilization. Civilization is the reason why we don\’t still sit around in a fucking cave.

    Anyway. Obviously, the \”morals\” of most people are guided by their interests. Gootube doesnt cost them anything and delivers the content free. So: Good. Content creators/holders cost them money and want to move against Youtube: Bad. I personally think that regardless of my personal interests, STEALING is bad. For the greater good. Everything else is a obviously a rationalization (going with technology, exposure, etc.).

    So yeah Mark: Right on. Keep it up. As far as I\’m concerned, you are defending the very values of civilization itself.

    Comment by Lascap -

  80. Mark, I think you\’re a smart guy but I think on this issue your are myopic. Everyone who doesn\’t have their head jammed up their portfolio doesn\’t care. This is purely an issue for people who are already rich who want to exploit their IP to become richer. Real artists are happy when people see their art.

    If you make money on a business model which relies upon withholding your content from the masses your model is over. Maybe there is money to be made by fighting content-sharing for another decade (maybe a lot). In the long run the more you get your content out the better. There are a lot of people out there who can get it for free who will pay for it especially when they know the companies they are dealing with are not the corporate equivalent of retarded whores. I honestly think people should go out of their way to download corporate music rather than buy it because the RIAA is such a dastardly organization.

    If you\’ve ever explained your fascination with this issue other than bitterness–because they are sort of doing what you wanted to do with broadcast.com–I missed it. Are you going anywhere with all these posts other than you think what youtube is doing isn\’t going to work? Do you have an alternative? are you hating ?? what?

    Anyways I love the Mavericks and think you\’ve done a great job with them. Few things would give me greater joy than to see the Lakers beat your team in the playoffs, but if I have to settle for the Suns beating them I\’ll take it. That\’s one thing about NBA games, they\’re generally not fun to download because you already know who won, and you make a lot of money on an experience that can\’t be copied–the game LIVE.

    Peace and keep posting
    Roland

    Comment by Roland -

  81. People are giving USPS as analogy to GooTube, how lame!! First of all someone making a mix music and sending it across to friends itself is in gray area. But problem is not there, problem is if USPS makes millions of copies of what you sent and distributed it free, would\’nt you sue?

    I would say more appropriate analogy would be that of a cable or satellite provider distribute all contents free with tons of advertisements without paying anything to HBO or others!

    I do believe that this will boomerang for viacom. But I guess all they are trying is better terms in their negotiations. All these big guys are pretty dumb and bad.

    Comment by its4us2think -

  82. Geogre,

    You are trying to convert YouTube to a technology play but YouTube is a content play. It\’s where people tell each other what they love and talk about it. YouTube an\’t just outsource it and frankly, I don\’t think what NBC needs is a technical solution.

    And who do you think pushed CBS and NBC to start streaming online? Would they have done so if it weren\’t for YouTube?

    YouTube will never replace TV, and therefore TV shows will continue to make money on TV. On the internet, however, it\’s a different story – a new model needs to be figure out – and not in court.

    And as for my sad point – why is it irellevant? Why does MTV own a music video it has never developed? isnt that a copyright abuse of natural justice?

    Comment by Aner Ravon -

  83. So while you make fine points, I still see a huge gap that\’s begging for a business/group to step in and fill it. Whether it\’s pay or ad-supported, there should be a one-stop shop to get/download music & video content, someplace that distributes the full catalogs of all the major labels, and that even the minor labels can get in on. Whatever it takes to make that happen, should happen. Consumers are obviously willing to do whatever it takes to make that happen. I mean, look how long it\’s taken the industry to realize that consumers would pay for 1980s TV shows… and given how slow the industry is, people are going to make it happen, and that\’s what YouTube is somewhat built on. I\’m still EXTREMELY annoyed that I can\’t go to NBA.com (or NFL.com or MLB.com or ESPN.com) and find a downloadable version of the 1996-98 NBA Finals, or the last X NCAA Tournaments… these should all be things I can get in high-quality if I\’m willing to pay for them, but no one out there has the content, and so those lucky people who were smart enough to record it are now putting it up on YouTube and I can see at least small, bad-quality versions of it… but that\’s SO much better than nothing, which is what\’s being offered. I\’d gladly pay for that content, given that I\’m somewhat price-insensitive when it comes to moments that have had major impacts on my life. And yet this is something over which I imagine you have some level of control, and yet I don\’t see Mavs content available anywhere except through the current standard media outlets. Anyways, sorry about that rant there, but sports is the single most important video out there, and yet it\’s even more controlled than TV shows, which I at least now have a chance to see if the studio decides to make some money on its back catalog. I\’d love your feedback on what the constraining factors are on the sports thing, too, if you can talk about it. Cheers.

    Comment by hootenany -

  84. \”Now some of those who are so self absorbed in net culture and have no idea how the real world works might think that all of this leads to more viewing and consumption. Maybe it does.\”

    You must have missed the tv pros talking about how viewership went up for CBS shows after posting on YouTube:
    http://www.dtg.org.uk/news/news.php?id=2085

    I\’ve seen better articles on the topic but my volunteer teaching time is short and I don\’t have them handy.

    I don\’t have a problem with Viacom suing Google. That\’s just good business. I don\’t have a problem with you not drinking the Web 2.0 koolaid. That\’s just good dietary practice.

    What I have is a problem with this nonsense:
    \”If they are smart, they will fill every Gootube Server they can reach with their content in a manner that drives viewers back to Viacom properties.\”

    I hate sp@mmers.

    Comment by Clyde Smith -

  85. I understand the whole content issue as I have to get content rights from the major networks and advertisers on a weekly basis. I also understand where VIA and other networks are coming from when they want to protect their assets, i.e. content.

    My problem is that the major networks constantly discount the quality of YouTube video and how it compares to content watched on TV, yet they turn around and claim that YouTube is costing them $1B. If they are basing this off the fact that they can\’t monetize the content with ads, then that\’s a completely lame claim. Why don\’t they then sue TiVo and every cable company that provides their viewers with a DVR? Everytime a show is time shifted just one minute, the entire revenue for that program and that user is gone. (Don\’t believe me? Wait until this year\’s upfronts are sold.)

    Now, if they are basing this claim on Showtime content and their movie content in regards to lost subscriber and DVD sales, then ok, I can see that.

    I think the real issue is that the cable companies and the networks weren\’t able to figure out how to monetize VOD content quick enough and web technology took over; now they are scared as hell. Had the major media companies come to an agreement and the majority of this content was availabe on VOD, then a lot of these users would just be downloading it and watching it on their TVs through the set top box. Would this have eliminated clips on the Internet, of course not, but it would have limited the need for full episodes on the internet. Instead users would have focused on samples to send to their friends. Heck, that\’s most of what\’s on YouTube anyways. When I get clips of John Stewart sent to me, it\’s not the whole program, just a funny segment.

    Comment by Tyler -

  86. OK, so the safe harbor provisions appear to be:

    (1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider

    (A)
    (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
    (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
    (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

    (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

    (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

    In thinking about it, I\’d say viacom probably fails A(ii), since they obviously have someone who checks the stuff that\’s uploaded for porn.

    They may also fail B. Because while the playback pages won\’t have any ads on them, the search listings do. So is ad revenue from when I search for a viacom property directly attributable to that property? I don\’t know, but I believe you certainly could argue that it is.

    Hmm, reading further in the statute its clear that revenue from indexing infringing content definitely falls afoul of this. Those 3 sections are essentially repeated for indexing and searching sites.

    This will be interesting. I think it\’s possible that the ad revenue on the search pages won\’t count, but think it\’s very unlikely that they survive the \”is not aware of facts or circumstances from which infringing activity is apparent\” test. I mean, when a movie\’s been split up into 10 minute chunks and uploaded, it\’s hard to argue that the infringing activity is nonapparent.

    Comment by Skip -

  87. I don\’t always agree with everything you have written about YouTube, but I certainly agree with the following quote:

    \”THe entertainment industry may not be great at many things, but getting copyright law changed to meet their expecations is one thing they are better than any one at.\”

    I believe the DMCA is currently broken and needs to be fixed in order to address consumer facing file storing products, particularly those that are indexed and can be searched and reviewed by other users.

    It will be very interesting to see how this case unfolds, as well as the future of the DMCA in the coming years.

    Comment by Jay Gould -

  88. Right on Mark – I think you hit it on the head.

    Aner – your sad points are irrelevant. Your counter-productive points fail to hold water when you look at it this way: (in response to #1) the technology has not been stopped, it\’s here and it\’s widely used… Viacom only wants to retain control of their content with technology they\’ve developed themselves. (in response to #2) Google can claim whatever they want about what Viacom will do with their content – but I think we\’ll see more of what we\’re seeing with FOX and NBC – streaming their shows online on their sites, with short advertisements. They retain control, they make money, and the consumer only has to endure a short commercial (10-30 seconds).

    The fact is – the content owners will always own their content and will always take it off of sites not paying them for it.

    Gootube should capitalize on where their strength lies – a versatile, scalable, proven video delivery technology. I feel like selling their platform to these networks for the networks to control, customize, and host their content would do better for Gootube than trying to do it the other way around – grabbing content from the content owners and putting it on Gootube.

    Comment by George Shaheen -

  89. Mark, why didn\’t Viacom go after YouTube BEFORE Google bought it, if Viacom was losing a ton of money because of YouTube? They waited… and waited… until they could sue someone with big pockets. It\’s not like Youtube\’s traffic skyrocketed after their deal with Google. The amount they were losing was pretty much the same…
    And I have a question for you. If I burn mix music CDs
    (copyrighted material), and send it to my friends via USPS, would it be fair to sue USPS, since obviously they are delivering the CDs? What\’s the difference?

    Comment by Mike -

  90. You totally missed this one Mark! Of course Viacom prefers making shitloads of money over \”sharing\” and of course they dont need Google to share. I totally understand why they protect their aging golden cow! That\’s not the point. Their suit is counter productive and sad, that\’s the point.

    Counter productive #1 – Even the best legal team can\’t stop technology. What are they going to do now? sue everybody? go back to film?

    Counter productive #2 – The spin Google will pull will really hurt the Viacom brand. Nobody wants to pay for an old episode of the Sopranos. Syndication my ass, HBO made too much money already anyway. Guess who from? The same people who want it on YouTube. Remember Lars and Napster? This will be perceived for what it really is – just too much greed.

    Sad #1 – I\’m not sure the real artists who need MTV prefer to stay controlled by Viacom.

    Sad #2 – Because so many legit business will now lose funding due to uncertainty.

    Comment by Aner Ravon -

  91. Mark, As much as I want to believe you when you say Google does not know who their users are – I have to look at common sense. The Google toolbar collects information about it\’s users such as their search queries and online surfing habits, and it\’s quite possible that they even are able to sniff out a name and general location of the person uploading or viewing their videos. If they are smart enough to scan my email and show me ads relative to the content in my email – I am sure they are collecting data on my demographics. They probably won\’t admit this however because then they would be liable. So we shall see what this lawsuit really does to the big G, personally – I don\’t believe that it will do much of anything.

    Comment by www.firelead.com -

Comments are closed.