YouTube Motions Highlight How Entertainment Industry Lawsuits May Have Slowed Useful Platforms

from the letting-business-models-develop dept

Fri, Mar 19th 2010 7:22am — Mike Masnick

We've already written up an analysis of the motions for summary judgment in the Viacom/Google YouTube lawsuit, suggesting that Google's arguments seem stronger. It still seems unlikely that either motion will persuade the judge to skip a trial altogether, but the motions are certainly a bit of a preview of what to expect at any trial. Most of the analysis out there sort of reiterates the talking points in the two motions, but Eric Goldman highlighted an important point that got me thinking in that time is working against Viacom here, as YouTube becomes more and more entrenched as a useful platform by the day:

Perhaps more importantly, the intervening time has been good to YouTube as a business and as a brand. In this sense, compare Grokster to YouTube. At the time of the Grokster cases, it was still very much an open question whether Grokster would ever evolve into a tool where legitimate activity dominated. While we might still have had that same question about YouTube in 2006, by 2010 YouTube has answered that question resoundingly. YouTube's business practices have matured, everyone has had positive legitimate experiences with YouTube (even behind-the-curve judges), and it's clear that major legitimate players have adopted YouTube as a platform for their legitimate activities. For example, YouTube's brief makes the point that all of the 2008 presidential candidates published YouTube videos as part of their campaign. I'm guessing no 2004 presidential candidates used Grokster for campaign purposes.

So as time goes on, YouTube solidifies a brand as a legitimate part of our information infrastructure. As we learn that the YouTube story has a happy ending, I suspect judges become less interested in punishing YouTube for past practices. For this reason (and others), I thought a lot of Viacom's inducement arguments ran hollow because they ran counter to my brand impressions of YouTube. I would also note that Viacom appears to be giving up its litigation over activity after May 2008, so even Viacom seems to be happy with YouTube in its current form.

Goldman goes on to point out that this may bring up some challenges heretofore unfaced in determining how the "inducement" standard works -- but, to me, it brings up an even more important issue: similar lawsuits against Napster and Grokster moved faster. Lots of people have commented on the fact that this particular lawsuit has taken three years from filing just to get to the summary judgment motions to be filed -- and during that time, Goldman is correct, YouTube has had a chance to mature, refine its business model, and do many things that we now find to be quite beneficial to society.

The same thing likely would have happened to both Napster and Grokster, if they had been given a chance to live. Executives behind each company repeatedly laid out strategies to mature their business models and to work as partners with the industry. It's just that they never got a chance to put those into practice because these sorts of lawsuits and rulings from judges forced them (effectively) out of business. In YouTube's case, the slow pace of this particular lawsuit has allowed it to firmly establish tons of viable, useful, valuable non-infringing uses -- to the point that it's a platform used by tons of companies, politicians, individuals and more. If Napster and Grokster had been given half a chance, they likely would have been able to evolve similarly.

And this is what is so painful about watching all these attempts by the entertainment industry to kill off any new technology that disrupts an old business model. These lawsuits kill off those technologies before the natural progression and maturation is allowed -- and because of that, we all suffer.

Now, some will scoff and claims that Grokster was never going to turn into what YouTube is today, but you're saying that with the gift of hindsight. A large part of Viacom's motion tries to suggest that the two companies actually were quite similar -- but even Viacom is now admitting that YouTube's business model was able to mature and adapt. Considering that we still don't have music discovery, promotion and distribution tools as convenient as Napster was back in the day, this can be seen as a real shame. These lawsuits killed off a useful path of exploration for legitimate business models, and that's not only shameful but a waste of innovative effort. It's only through the random quirk of a slow court that YouTube may avoid suffering the same fate.

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: copyright, innovation, lawsuits, platforms, stifling
Companies: google, viacom, youtube

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Hephaestus (profile), 19 Mar 2010 @ 7:38am

whats the link to the survey?
I had a pop up show across the top asking me to take a techdirt survey ... whats the link please
[ link to this | view in thread ]
Anonymous Coward, 19 Mar 2010 @ 7:47am

Someone should re - open "napster" and put some effort into blocking all known infringing content. The Napster replacement can have instant messages and chat rooms and song descriptions and a place so that new artists can even put comments and lyrics upon double clicking on a song before opening it. If the server admins put some effort into blocking copyright material, though the system certainly will not be perfect, I'm sure a judge will be more sympathetic. While I don't agree with current copyright laws and think they're absurd and a result of a corrupt government and corrupt corporations, the fact is that most people used Napster for piracy and there was little to no indication that the people who ran it put any effort to stop the piracy (and sure, they shouldn't have to, we shouldn't have broken laws that have such requirements that hinder innovation and artificially increase prices to consumers and add undue burden to innovators just to help evil monopolists the way our current laws do. The real reason Napster got shut down is probably because the RIAA saw it as a platform that can eventually be used to help people compete with them by releasing free CC license music in the long term, not because it harmed their short term sales. About the only time I have ever bought music was when Napster was around, I stopped buying music after they got shut down).
[ link to this | view in thread ]
crade (profile), 19 Mar 2010 @ 8:11am

I think "likely would" is a bit strong. Rather I would go with it is possible that the same thing would have happened (which is still good enough I think) Every useful idea was at that stage at some point. If you stiffle it when it is in infancy, you will never know if anything would have come out of it or not.
[ link to this | view in thread ]
Anonymous Coward, 19 Mar 2010 @ 8:13am

Excellent point. Most startups begin by trying to be useful and get traction and only then do they start figuring out ways of monetization and coming out with business models.
[ link to this | view in thread ]
Anonymous Coward, 19 Mar 2010 @ 8:31am

Re: whats the link to the survey?
I dont think Techdirt knows what that link is... I saw that last week briefly then it went away. I emailed techdirt and got an answer something along the lines of clear your cache and cookies, that didn't work. If they can't get the link to interested readers then the survey is pretty useless.
[ link to this | view in thread ]
mike allen (profile), 19 Mar 2010 @ 8:50am

Re:
sort of like a better Jamandi i hope that spelt right yeah i'd go for that.
[ link to this | view in thread ]
Hephaestus (profile), 19 Mar 2010 @ 9:17am

Re:
"RIAA saw it as a platform that can eventually be used to help people compete with them by releasing free CC license music in the long term, not because it harmed their short term sales."

LOL ... These corporations are into their quarterly returns. Its the mentality that pervades corporations today. I agree the long term goal of the labels is to save the record labels. You need to start with the short term to make the long term work. In the short term RIAA is alienating their customer base, price fixing their product, stopping any innovation that they could use to help them, and not heeding what the market wants or will bear. This is forcing an evolution of methodologies and applications that circumvent every possible future move they can make and law they can get passed. That doesnt show any sort of real thought for the future or planning.

Studying the results of what they have done in the past seems to elude them. They get tougher laws passed in Sweden, Korea, France, etc and people use different tools to infringe on content. This infringement is now hidden behind a wall of encryption. They declare it a victory because it is no longer seen. They create studies whose outcome is predetermined to show how this has worked as a method to deter infringement. Then they believe their own biased studies and use them to march forward blindly.

The psychology behind this is really neat and actually based on the stages of grieving. What is really interesting is the fact that you have different groups in different stages of grieving. This allows for hope to remain as the stage 3 guys fail, they look around and find the stage 2 guys, and say "look they might have something that works" and hop on the stage 2 band wagon.

This reminds me alot of the story of Tantalus ... to stand in a pool of water beneath a fruit tree with low branches. Whenever he reached for the fruit, the branches raised his intended meal from his grasp. Whenever he bent down to get a drink, the water receded before he could get any.
[ link to this | view in thread ]
Hephaestus (profile), 19 Mar 2010 @ 9:30am

Re: Re: whats the link to the survey?
"If they can't get the link to interested readers then the survey is pretty useless."

I agree. I do so like this place and have a couple suggestions for them. A save as draft would would be nice viewable on the profile page, Expanding the search function to have more options, a favorite TD and external links section on our profile page, etc.
[ link to this | view in thread ]
The Infamous Joe (profile), 19 Mar 2010 @ 9:55am

Re: Re: Re: whats the link to the survey?
How about no extra page after submitting a comment saying it was submitted? On long threads it's a pain to go find where I was. :)
[ link to this | view in thread ]
Hephaestus (profile), 19 Mar 2010 @ 10:31am

Re: Re: Re: Re: whats the link to the survey?
I think just feeding the "link to this comment" in the URL to the submit page would work then they could have two links on the submit page. One for the top of the page you were on, the other for the page-thread location you came from.
[ link to this | view in thread ]
Anonymous Coward, 19 Mar 2010 @ 3:46pm

the entertainment companies are under no obligation to provide free content for platforms so they can go. certainly those platforms are not legally allowed to just take what they need and not pay the required fees or royalties to do so. youtubes motions prove that they just dont have much of a come back, and are likely to be very big losers in this case.
[ link to this | view in thread ]
Mike Masnick (profile), 19 Mar 2010 @ 3:57pm

Re:
certainly those platforms are not legally allowed to just take what they need and not pay the required fees or royalties to do so.

You seem to have a bit of a reading deficiency. No one said that they should have the right to "go take" what they want. It's a question of whether or not the platform is liable for the content.

youtubes motions prove that they just dont have much of a come back, and are likely to be very big losers in this case.

Heh. Most lawyers seem to disagree with you. Let's see what the court says.
[ link to this | view in thread ]
Hephaestus (profile), 19 Mar 2010 @ 5:25pm

Re:
"youtubes motions prove that they just dont have much of a come back"

Actually they prove the exact opposite. Have you spent the time to read through them? the links are here if you care to read them
[ link to this | view in thread ]
Marcus Carab (profile), 22 Mar 2010 @ 9:41am

Re: Re: Re: Re: Re: whats the link to the survey?
You should drop an email to the Techdirt suggestions with your ideas. The developers are awesome and if they like your idea will start hacking away at it the very same day.
[ link to this | view in thread ]
Tube Toolbox Promo Code, 21 Oct 2011 @ 5:39pm

Huge Law Suit
Has anyone seen the lawsuit that YT is in right now with the entertainment industry? Or should I say, that latest one? They're are being sued for every video that has ever had copyrighted material on it? Seriously? Good luck trying to regulate a giant like youtube.
[ link to this | view in thread ]