The Difference Between Content And Communication In The YouTube/Viacom Billion Dollar Spat
from the this-may-take-a-while dept
It's been well over one year since Viacom sued YouTube for $1 billion, but these things take time. Late Friday, Google filed its response to Viacom's recent filings in regards to the lawsuit, and basically said pretty much what you'd expect Google to say:- that it follows the rules of the DMCA's notice-and-takedown procedure
- that it does everything it can possibly do to stop the sharing of any copyrighted content that it's alerted to and
- that Viacom's claims that it's not doing anything are clearly incorrect.
What's really left unsaid (but is an important point of conflict that we're going to see more and more of over the next few years) is that this suit demonstrates the different ways that certain companies are viewing the internet (and how our existing laws are basically duct-taped together to account for this difference). Media companies still look on the internet as a content platform. That is, they think of it as a new broadcast medium. Most other folks recognize that the internet is a communications medium, and the focus should be on the ease of communication. That's a problem for anyone who comes from a world of broadcast media, and it creates all sorts of problems for copyright law that is designed mainly to protect a broadcast-style media. Yet, when it comes to communication, the idea of using copyright to restrict content gets weird in a hurry.
In typical communication, copyright makes no sense. You don't worry about copyright (even though it exists) when you send a letter or an email to a friend. You're communicating, so of course the idea gets copied and repeated. In broadcast, the broadcast media model was always based on control and artificial scarcity. The DMCA safe harbors are kind of a kludge to deal with this difference, putting the onus on the communicator not to be breaking someone's copyright, leaving the communications platform out of it. Yet from the perspective of the media companies, they view the internet as a broadcast media, and thus the YouTube's of the world aren't communication platform providers, but competing broadcasters. Hopefully, the court will recognize the reality that the internet was always a communications platform, and it's just the broadcast media (who are late to the party, anyway) who are trying to force it to act more like a broadcast system.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: communication, content, copyright, dmca, takedowns
Companies: google, viacom, youtube
Reader Comments
Subscribe: RSS
View by: Time | Thread
Late to the Party, Indeed!
Unfortunately, media conglomerates aren't likely to post to a forum or to show anyone what they're doing. Even if they did, the odds of any of them taking advice is very low.
I think the media industry is populated by the descendants of the pioneers of film and television. They don't know what they're doing, and they seem to have a sense of entitlement that prevents them from moving forward.
[ link to this | view in chronology ]
Re: Late to the Party, Indeed!
[ link to this | view in chronology ]
Re: Late to the Party, Indeed!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Can't have it both ways
Why? I doubt that the BBC have made the show available to anyone outside the UK, and the YouTube video was unlikely to have been unauthorised. The BBC's own player won't let me watch their content (despite having been a licence fee payer for most of my adult life, I currently reside outside the UK) and I can't buy the episodes on DVD. So I have no way of watching the show legitimately, and so cannot affect the profits or ratings of the show directly.
If the show is discovered by a BBC copyright holder, it will probably be removed and "piracy" blamed. These companies can't have it both ways - allow people to consume the content on their own terms or expect them to find a way around the artificial structures in place. Leverage the interest in your products, don't try to control the minds of potential customers.
[ link to this | view in chronology ]
Re: Can't have it both ways
I think that is the BBC's thinking....MONEY!!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Words being parsed
Note: I am taking no position on the merits of the suit, but merely expressing the view that depending upon circumstances the internet can be viewed as performing both broadcast and communications functions.
[ link to this | view in chronology ]
Re: Words being parsed
[ link to this | view in chronology ]
Re: Words being parsed
It was built and always used as a communications platform. The use of it as a content platform is a relatively recent phenomena, which the big media companies are trying to coopt. The fact that it can be used as a broadcast medium, doesn't change the fact that it's a communication platform.
The real issue is that the attempts by big media companies to make it act more like broadcast media they're used to, will also *harm* its ability as a communication platform. That's my biggest concern. Broadcast media already have their own platforms. Why should they ruin a communications platform?
[ link to this | view in chronology ]
Outstanding summary
[ link to this | view in chronology ]
Nature of the Medium
[ link to this | view in chronology ]
Re: Nature of the Medium
"As a result, the broadcast media i.e. the content owners must rely on copyright law as their sole recourse to protect their content until a better legal framework for the exchange of digital content is more clearly devised."
There's the problem, and I think you're looking at it in the same misguided way as the content owners. Your idea, and theirs, is that copyright law must provide a framework to restrict and control the general public so that content can be delivered in a profitable way.
Mike's idea, and YouTube's for the most part, is that people will communicate with each other and select the best media. From there, the media can be exploited, monetized and profited from. Look at, for example, the way that some movie promotional material (Cloverfield, Watchmen, The Dark Knight) has gone "viral" and essentially promoted itself through people linking to YouTube clips and going "this is cool". Look at the way that a relatively smalltime TV show, cancelled within a few episodes (Firefly) gained such a fanbase through people talking about it online that a major movie was produced based on that. What about Family Guy and Futurama, which through online communication managed to get cancelled shows back on-air in some form.
Now, I admit that none of the above examples are perfect, but is that the fault of YouTube, or an industry that's too dependent on pre-Internet thinking and business strategy?
"If you look at it solely as a communications medium that delivers this content, then television and radio would also be communications mediums albeit one way."
A.K.A. broadcast.
[ link to this | view in chronology ]
Re: Re: Nature of the Medium
The movie promotional material you mention is released by the content owners - the studio - for the sole purpose of being spread via any means necessary over the internet. Ideally studios hope to draw you into theaters. The studio sites which house much of this content is not directly monetized because the content provider is getting value out of you simply viewing the promotional material. This promotional material is not what content providers are concerned about it - they are concerned about the free availability of the content broadcast over the internet without a means to monetize it. Networks and studios are in the process of developing their own distribution mechanism over the internet which provide the content in its entirety in a monetized way (see hulu for instance). Completely free availability of this content undermines this pursuit.
[ link to this | view in chronology ]
Wow, Are you all that blind?
http://criticalwatcher.com/jm15/blog/1-blog/4-contentvcommunication
[ link to this | view in chronology ]
Is Viacom sill using YouTube
So, how can VH1 be using clips from YouTube if Viacom is currently suing YouTube/ Google? At the very least, Google should issue an injunction to stop Viacom from using their material.
Or maybe Google can force Viacom to run a disclaimer before their shows which says something like "The following videos were taken from the people we are currently suing. Enjoy."
[ link to this | view in chronology ]
If it was only communication,this wouldn't be an issue
For me, it is the first step in attempting to make a big cloud of smoke that makes it impossible to see reality.
Youtube doesn't just provide communications, they provide both hosting AND an interactive display platform. Most importantly, the income (what there is) is not generated as a hosting company, but as a display company. All those nice google ads all over the site are the income that pays for the service to exist. The content is taken, it is sorted, encoded, and presented in formats and circumstances other than what it started out as. Youtube doesn't just host it, but it manipulates it (through automated systems, amoungst others) and aggregates the content, and profits not from being an innocent host but frmo being and active aggregation and presentation company.
Without "product", they would be hosting nothing.
Youtube's biggest issue is that a normal hosting company would have records of their clients, and under DMCA, they would still be liable to take action when notified about copyright material. Failure to take action under DMCA makes then entirely liable. As Youtube is unable to identify their clients, it is a big legal jump to make the assumption that Youtube itself and it's staff actually uploads the videos. They have no ways outside of server logs to show otherwise.
At the end, youtube and similar are actively abusing the position of "safe harbour host" to violate copyright over and over again, profiting (or at least making income) from the distribution of these materials. They run the risk of having the US lawmakers re-write the laws to remove the exemption for hosts, creating liablity for thousands of other honest hosting companies that would never get involved in this sort of thing to start with.
Content is content, product is product, hosting is hosting. You cannot stir them all up and say "see, nothing there!".
I know the tubie-mp3-torrenters will hate this comment, but too bad. Go produce something of value and watch it get stolen over and over again, and then explain how you feel.
[ link to this | view in chronology ]
Re: If it was only communication,this wouldn't be an issue
Talk about smoke and mirrors. All of which is part of providing an internet platform that can be used by anyone, regardless of the content in question -- EXACTLY the situation that the DMCA safe harbors were designed to protect.
Most importantly, the income (what there is) is not generated as a hosting company, but as a display company.
I don't see how you make the distinction there. There are different business models at play. There are hosting companies out there that are free, but supported by ads. Whether the bill is paid by hosting fees or by ads makes no difference to the nature of the platform itself.
The content is taken, it is sorted, encoded, and presented in formats and circumstances other than what it started out as.
And that's different than any other internet service how?
Youtube's biggest issue is that a normal hosting company would have records of their clients, and under DMCA, they would still be liable to take action when notified about copyright material. Failure to take action under DMCA makes then entirely liable.
Except this entire argument is destroyed by the fact that YouTube *does* take action when they receive a DMCA-compliant takedown.
As Youtube is unable to identify their clients, it is a big legal jump to make the assumption that Youtube itself and it's staff actually uploads the videos.
Who is making that assumption?
At the end, youtube and similar are actively abusing the position of "safe harbour host" to violate copyright over and over again,
Again, this is exactly the case that the safe harbors were created for. I fail to see how it's an abuse. The purpose of safe harbors were to protect the platform provider from being liable for the actions of a user. That's exactly why it makes sense here.
Content is content, product is product, hosting is hosting. You cannot stir them all up and say "see, nothing there!".
Huh?
I know the tubie-mp3-torrenters will hate this comment, but too bad. Go produce something of value and watch it get stolen over and over again, and then explain how you feel.
Well, I think you mean "infringe" rather than "steal" and I've made my position abundantly clear on that: I think it's great. That's because I set up a business model where the more people see my content, the better.
[ link to this | view in chronology ]
Are copyright laws being used to supress free speech?
[ link to this | view in chronology ]
Getting the words right
My blog is broadcast, i.e. many people can see it, it's just out there. But when I am using my VPN to RDP to a remote system that's not a broadcast of any content but a very direct form of data communications.
As usual the media folks want everything structured so they make the rules and that it's all classified in such a way as to have them control it via existing law.
Remember that only the mega media corps create content, no one else does that. ; )
[ link to this | view in chronology ]