The Difference Between Content And Communication In The YouTube/Viacom Billion Dollar Spat

from the this-may-take-a-while dept

Tue, May 27th 2008 1:45am — Mike Masnick

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.

Google also makes the rather important point that the DMCA safe harbors were put in place for a very good reason (to make sure liability is focused on those actually liable) and if the court were to overturn those safe harbors it could dismantle much of what makes the internet work as a communications platform.

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.

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Filed Under: communication, content, copyright, dmca, takedowns
Companies: google, viacom, youtube

22 Comments

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Brad Eleven, 27 May 2008 @ 3:41am

Late to the Party, Indeed!
This brilliant analogy is buried at the end of the post, but sums up the idea very well. It reminds me of a post to a Perl forum more than a few years ago, entitled "This Language is SLOW." The complainer included the code, which used the older C model of reading one character at a time in a loop. The newbie got quite a bit of advice and is to this day a major CPAN contributor.

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.
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www.custompcmax.com, 27 May 2008 @ 4:20am

It is funny how out of the "loop" some of these companies are.
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Vincent Clement, 27 May 2008 @ 4:41am

Re: Late to the Party, Indeed!
With copyright terms of life plus 70 years or 95 years, the media industry has no incentive to adopt, innovate or change. They want everyone else to revert or support their outdated business model.
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Peter Lanado (profile), 27 May 2008 @ 5:10am

Perhaps we, the end users of these monoliths content, should en masse decide not to use their products or view their content and vocally complain to any company that does. Perhaps that would concentrate their minds onto this century!
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wasnt me, 27 May 2008 @ 5:45am

im just happy there is a giant the size of google on the right side on this mess.
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PaulT (profile), 27 May 2008 @ 6:26am

Can't have it both ways
Quick anecdote: last night, I watched a couple of episodes of the BBC comedy quiz Q.I. via YouTube. It was very funny and I was very entertained, but none of the participants will ever know.

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.
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Ortzinator, 27 May 2008 @ 7:09am

(Mike likes parentheses)
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MLS, 27 May 2008 @ 8:29am

Words being parsed
Without taking any position of the matter of Viacom v. YouTube and Google, it seems to be that "broadcast" and "communication" is an inaccurate parsing of words. I personally view the internet as a system capable of doing both. To limit it as being one or the other seems to me to miss the mark as I believe the two coexist.

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.
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Jed, 27 May 2008 @ 9:03am

Outstanding summary
I'm incredibly impressed with how succinctly you described this issue. When you burden the issue of media on the internet down with details it becomes unnecessarily complex and muddles some simple truths. You tore right past all of that and clearly underlined the fundamental flaw media companies are generally oblivious towards. My compliments sir.
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JR, 27 May 2008 @ 9:30am

Nature of the Medium
MLS is right in that the internet has to be viewed as both a broadcast medium and a communications medium. When it relates to content transferred between individuals in a non-commercial exchange, application of copyright law is not appropriate and the internet functions as Mike sees it - as a communications medium. When content is transferred for a marketing/commercial purpose or has previously been created with a commercial goal in mind, it's then when the control of such content becomes a legal issue and the content owner's sole legal protection is copyright law. 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. Also, it's only natural for the broadcast media to look at the internet as a broadcast medium - to them it's another mechanism by which their proprietary content is distributed to consumers. 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.
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PaulT (profile), 27 May 2008 @ 12:05pm

Re: Nature of the Medium
It's capable of doing both, but it's the communications that's the real strength. If broadcasting was the internet's strength, why would anyone use their computers instead of the TV to view content?

"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.
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Critical Watcher, 27 May 2008 @ 12:20pm

Wow, Are you all that blind?
This article is complete bull. It is so over simplified that it ignores the simple truth that the internet and youtube are two different things. See my complete response here:

http://criticalwatcher.com/jm15/blog/1-blog/4-contentvcommunication
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JR, 27 May 2008 @ 1:04pm

Re: Re: Nature of the Medium
My point was more directed at the distribution of content itself whereas your response is focused more on communication discussing the content. The buzz created around Futurama, Family Guy, and Firefly was a result of people communicating about content. Viral marketing involves someone seeing something online that they like and telling someone else about it. Now where they see it, where the content is hosted, that is where the copyright issues arise because that is where people are direct to. Right now it is those eyes which are monetized on the net.

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.
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John (profile), 27 May 2008 @ 2:40pm

Is Viacom sill using YouTube
Does anyone watch VH1 (a Viacom-owned station)? And does VH1 have shows like "best web ever" (or whatever they call it)? And do these shows show clips from YouTube... as a "review" copy of course, so there's no need to give credit or copyrights?

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."
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rawalex, 27 May 2008 @ 4:00pm

If it was only communication,this wouldn't be an issue
One of the issues I think in all of this is the way that Google, Youtube, et al have attempted to morph content into something much less. That is to say, that have taken a product (movie, TV, or music, example) and attempted to say once it is on our servers, it is no longer a product, just a communication waiting to happen.

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.
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Willmat, 27 May 2008 @ 6:09pm

Are copyright laws being used to supress free speech?
Right now YouTube is a powerful means to critize any program. Posting a clip of a program to point out it's flaws is much more powerful than simply describing the programs flaws. Such use of such a clip should be legal under fair use. Posting an entire program is not fair use and should be prohibited.
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Skippy, 27 May 2008 @ 9:37pm

Re: Words being parsed
You can refer to it anyway you want. But computers "communicate" over a network. Computers or servers can be setup to broadcast over a network, but generally that is limited to the same subnet and is not the original design set for the communication protocols that were created.
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Mike (profile), 28 May 2008 @ 2:36am

Re: Words being parsed
Without taking any position of the matter of Viacom v. YouTube and Google, it seems to be that "broadcast" and "communication" is an inaccurate parsing of words. I personally view the internet as a system capable of doing both. To limit it as being one or the other seems to me to miss the mark as I believe the two coexist.

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?
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Mike (profile), 28 May 2008 @ 2:42am

Re: If it was only communication,this wouldn't be an issue
Youtube doesn't just provide communications, they provide both hosting AND an interactive display platform.

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.
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Kevin, 28 May 2008 @ 7:07am

Getting the words right
I would say that the internet is indeed a communications platform, however, this platform can be used for narrowcast or broadcast communications.

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. ; )
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patrick, 12 Jun 2008 @ 7:50pm

Re: Late to the Party, Indeed!
Spot on!!
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patrick, 12 Jun 2008 @ 7:59pm

Re: Can't have it both ways
Would Mel Gibson have made 250 million pounds on his film,if it was put on you tube by someone?

I think that is the BBC's thinking....MONEY!!
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