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:

1. that it follows the rules of the DMCA's notice-and-takedown procedure
2. that it does everything it can possibly do to stop the sharing of any copyrighted content that it's alerted to and
3. 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.

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

Viacom Agrees With NBC Universal: Our Business Model Problems Need To Be Fixed By Everyone Else

from the *sigh* dept

For the last year or so, NBC Universal has been on quite the rampage, basically telling a bunch of other companies that it was their responsibility to help prop up NBC Universal's obsolete business model. It appears that Viacom's Sumner Redstone can sing that song too. In a speech in South Korea, he said that "ISPs, device manufacturers, hosting companies, and site operators" all need to be protecting his content. Yes. Either that or maybe you should just find a new business model, and stop whining about how everyone else needs to protect yours. It really is rather ridiculous to see these huge entertainment conglomerates demanding that other businesses act to protect their business models, just as more and more companies are figuring out how to embrace (not fight) the changing market.

Filed Under: blame, business models, copyright, sumner redstone
Companies: nbc universal, viacom

Court Explains Copyright Law To Viacom (Perhaps Not For The Last Time)

from the punitive-damages-don't-exist-in-copyright-law dept

It's been a year since Viacom sued YouTube for $1 billion dollars, and it appears that the company is still learning the very basics about copyright law. A quick legal analysis (and understanding of the safe harbors in the DMCA that protect service providers from the actions of their users) would suggest that YouTube is not liable for the infringement that occurs on the site. But that didn't stop Viacom from suing. In fact, it tried to go much further than just the $1 billion in claiming that YouTube/Google actually owed it additional punitive damages as well. It appears the judge is having none of that, pointing out to Viacom's lawyers that the Copyright Act does not have any provision for punitive damages. This isn't a deep legal question, it's a question of reading the basic statute, as the judge makes pretty clear in the ruling. Hopefully, the judge will also notice that Viacom doesn't seem to have read the safe harbor provision of the DMCA either.

Filed Under: copyright, punitive damages, youtube
Companies: google, viacom, youtube

Paramount Recognizes That Clips Of Movies Act As Advertising For The Movie Itself

from the what-a-concept dept

It really is amazing how little entertainment industries recognize how clips of their content online promotes the rest of their content. When people talk about scenes in TV shows or movies, it's become quite natural to search for video of those clips to show. Such clips don't take away from the commercial value of the movie or television show, they enhance it -- giving people additional reasons to watch the full version. Yet, rather than recognizing that, you have entertainment firms like Viacom suing YouTube for $1 billion for facilitating such a free marketing tool. However, it appears that not everyone at Viacom is thinking so narrowly. Paramount Pictures, which is owned by Viacom, has now started releasing snippets from its various movies for fans to make use of within Facebook. It's a little silly that it's only on Facebook, but given the lawsuit against YouTube, Paramount execs probably recognized they had to stay away from YouTube. This definitely seems like a good idea, though it's a bit amusing to have a Paramount exec say that this project could become "ad supported" at some point. Does he not realize that the clips are ads themselves?

Also, the article points out that just getting permission to get these clips online is quite difficult, and other studios probably won't follow. A big part of the problem? All the different people who have to give their permission, thanks to ridiculous royalty policies, like the one the TV/movie writer's guild fought for. In other words, just as we predicted, the agreement cutting the writers in on online royalties is making it more difficult for the studios to adapt to the web. When everyone has to give approval and get a cut, you get innovation by committee -- and that rarely works. You almost always get someone who will veto the effort. In fact, it's rather impressive that Paramount was able to get any movie clips up at all.

Filed Under: advertising, movies, promotions. clips, youtube
Companies: paramount, viacom

South Park Comes Full Circle, Though Viacom Doesn't Seem To Realize It

from the history-lessons-needed dept

Kevin Stapp writes in to let us know that Viacom has decided to put every episode of South Park online. The article quotes MTV Networks Chairman and Chief Executive Judy McGrath talking about having TV shows online doesn't hurt their viewership and could actually help: "One does not diminish the other by any stretch of the imagination." This is something that plenty of folks have noticed before, but perhaps something McGrath shouldn't be saying it as her parent company is trying to convince a court that YouTube is costing it money. McGrath's quote probably won't play very well in court.

However, what's even odder is that no one (in the article, at least) seems to recognize that this is simply a case of South Park coming full circle. The only reason that South Park even is a TV show is because of the video short created by Trey Parker and Matt Stone got passed widely around the internet back in 1995 and 1996. Also, once the show launched, it was one of the first TV shows that fans quickly put online and shared, helping promote the popularity of the show. I still remember people passing around links to the first few episodes in order to round up people to get together to watch the newest episodes on TV. And, what happened? You guessed it... Comedy Central flipped out and started threatening all of the sites that were hosting the episodes. Yet here we are, a decade later and its big news that the company has finally (partially) come to its senses?

Filed Under: online, south park
Companies: mtv, viacom

Sumner Redstone Confused By The Copyright Myth

from the copyright-as-a-crutch dept

A few folks have been submitting stories to us about CBS and Viacom chair Sumner Redstone's comments about copyright, claiming that "If content is king, copyright is its castle." It has a nice ring to it, but by itself it's fairly meaningless. His specific statements on copyright, however, suggest he's been sucked in by the copyright myth. "Think about it: You cannot pay the rent posting videos on YouTube," he said. And, indeed, you cannot... if all you're doing is posting videos to YouTube. However, I could just as easily say: "Think about it: You cannot pay the rent putting the Daily Show on TV." Because you can't... unless you sell ads with it. Which is exactly what Viacom does. And there's nothing stopping people from putting business models around slapping videos up on YouTube as well -- it's just that those business models may be different than the ones Viacom is used to.

He then says: "You cannot make it as a musician, you can't make it as a filmmaker or a writer without ... effective and enforced copyright legislation." This is, to put it flatly, wrong. You absolutely can make it as any one of those things without effective and enforced copyright. We're seeing plenty of musicians do exactly that. We've seen writers do the same as well. And despite the cries of the MPAA, we've seen that movies still make tons of money, even when they're widely downloaded (meaning that copyrights were neither effective nor enforced for many). That's in the present day. He's also wrong historically, as anyone familiar with the history of copyright will know. Plenty of creative works were created prior to copyright being around, and weak copyright laws actually helped accelerate the market for books in the US.

His next statement is even worse: "The time and effort spent creating and the months spent producing, marketing and distributing content is an investment; it is not intended to be a donation." The thing is no one has ever said it's intended to be a donation. All we've said is that you can put different business models around it that don't involve treating people like criminals, giving them more content and even being able to make more money from that content, if you do it right. The idea that people who are pushing back on draconian and damaging copyright laws want all content to be "donated" is incorrect. We're saying that it's time to find and adopt new business models that don't involve artificial scarcity. It's really not that hard, except for those who still believe the copyright fairy tales that Redstone repeats here.

Filed Under: copyright, sumner redstone
Companies: viacom

Latest Study Questions Whether YouTube Really Hurts Viacom

from the perhaps-not-so-much dept

With Viacom suing Google for a billion dollars, claiming massive losses due to people watching its shows at YouTube rather than on TV, it certainly seems worth asking whether or not YouTube actually represents a loss to Viacom. Luckily, that's just the type of question economists like to dig in on -- and a new study basically finds that Viacom is almost certainly overreacting, and potentially harming itself in trying to kill YouTube. What the study found was that while there is a small decrease in how much time people spend in front of a TV if they're watching videos online, they end up watching a lot more overall programming. That is, the decrease is made up and more (a lot more) online. And, in other ways, it may be helping increase TV viewership, as someone who watches a show online becomes a lot more likely to watch that show on TV as well -- simply switching back and forth between whichever media is more preferable at the time. In other words (and this shouldn't come as a surprise) those clips on the web help promote the TV series that are available and help build up new loyal viewers... and all of these promotions come without the company having to pay a dime for the promotion. And that's what Viacom is suing over? People helping to promote their shows? Admittedly, the study only focuses on college kids, who may not be a representative sample of the wider US -- but given the core demographic most TV shows are going after (and the folks Viacom is most worried about losing to the web), this study certainly suggests Viacom is totally wrong about yet another thing.

Filed Under: complements, downloads, substitutes, tv watching
Companies: google, viacom, youtube

Studios Unveil Meaningless 'Guidelines' For User Content Sites

from the audible-magic-full-employment-agreement dept

There's a lot of talk about the new "guidelines" that were announced today mainly by the big television studios, along with a few smaller players in the online video space. The press coverage highlights two things: this is a big deal and it's notable that Google didn't agree to join. I'm not sure either thing is really true. Reading through the actual principles, about the only thing that's noteworthy is how pointless they are. If anything, they're basically a "full employment for Audible Magic" document in that they require companies to install the type of filters that Audible Magic is selling (though, it's still questionable how well they work). There are some totally meaningless statements about supporting fair use, but no details on how that's actually to be done. In other words, these principles are basically "everyone should install filters that block unauthorized content and... uh... the content companies will remain aware that fair use sort of exists sometimes." That's somewhat meaningless. Google's reason for not joining, even though it has come up with its own filters, is that it doesn't see why it should agree to stand by any specific guidelines that go above and beyond what the law requires, as there could be conditions under which such guidelines hold back necessary innovation. The bigger point, though, is how truly meaningless these guidelines are. If those guidelines are truly effective in stopping some unauthorized content on these sites, that content (and many users) will simply migrate elsewhere. In other words, it won't stop that unauthorized use of content and it won't help any of the companies that have agreed to the principles. That means that the impact of such things is likely to be pretty much nil.

Filed Under: copyright, guidelines, user generated content
Companies: audible magic, cbs, disney, google, microsoft, myspace, nbc universal, news corp, viacom

YouTube Announces Tool For Angry Copyright Holders

from the the-latest-magic-bullet dept

After many many months of saying the company was "working on it," Google has finally released the details of its tool to help angry copyright holders deal with their content being shared on YouTube. The tool doesn't sound all that surprising. Basically, the company tried to build its own version of Audible Magic's famed "magic bullet" approach to stopping unauthorized sharing. Of course, Audible Magic's solution has run into problems when people realized it doesn't work very well, and you have to wonder how well Google's homebrewed solution will work as well. It's not an easy problem to solve, and going back to the original Napster (which tried to add its own similar filter), people quickly find ways around the filters. There are two noteworthy things in the Google announcement. First, it requires copyright holders to upload their own copies so that Google can match them to the content on the site, and it offers the copyright holder a variety of options beyond just "block any copies." That's where it gets a little interesting. Copyright holders can also choose to leave the content up, but place ads on it, with a split of the ad revenue going back to the copyright holder. In other words, Google is at least encouraging copyright holders to consider that simply taking down the infringing content may not make as much sense as trying to make money off of it. Somehow, we doubt that too many copyright holders will sign up for this "leave it up, but with ads" program, but perhaps we'll be surprised.

Filed Under: copyright, dmca, piracy, video
Companies: google, viacom, youtube

Viacom: Wrong On Almost Every Thing

from the nice-work dept

It's no secret that we think Viacom has made some really bad strategic moves recently (while sister company, CBS seems to be making the right moves). However, it's still impressive to see Viacom CEO Philippe Dauman lay out so many wrongheaded strategic positions in a single speech. Clearly, Viacom's strategic sickness comes from the top -- and it's going to strangle the company as others, who actually pay attention to basic economics and trends, run rings around Viacom over time. Let's take a look at all the issues that Dauman is wrong on.

• DRM and watermarking: Dauman says the way to defeat piracy is for companies to "unite against piracy by installing more safeguards." How's that been working so far? Right, it's only made the problem worse and pissed off a bunch of folks by treating them as criminals. Limiting what people can do and treating them like criminals diminishes value, rather than increases it. As more and more companies are learning this, it's simply going to push people away from stragglers like Viacom.
• Spurring creative output: Dauman insists that copy protection and watermarking are necessary to "usher in an unprecedented period of creative output across the globe." Apparently he hasn't been paying attention. We're already in an unprecedented period of creative output across the globe -- and it isn't because of copy protection and watermarking, but because of increasingly simple tools for content creation, promotion and distribution -- all of which are held back by things like DRM and watermarking.
• Easy copying and distribution seen as a problem: Dauman apparently complained about how awful it is that "all manner of intellectual property" can now be reproduced more easily than ever "at the click of the mouse." Only in the world of someone who doesn't understand basic economics would that person lament the fact that the tools of creation and distribution are getting cheaper. For most people who recognize that they're selling benefits, not products, having the cost of production and distribution drop to virtually zero would be seen as an opportunity, not a problem. Unfortunately for Viacom, there are plenty of companies that do view the easy reproduction of content as an opportunity rather than a threat, and that's going to hurt Viacom if it continues its current policies.
• Supporting ISP plans to filter traffic: Dauman apparently applauded AT&T's efforts to filter copyrighted content. It's not hard to see why he would support this, but it seems like a model designed to simply waste AT&T's money. There's no clear way for AT&T to profit from this -- and, if anything, it will just annoy users of AT&T who will look to go elsewhere. At the same time, given the high number of false positives in takedown notices (including those from Viacom), it's only a matter of time until this filtering effort starts blocking perfectly legitimate content. It's also not clear how AT&T determines what is and what is not infringing content. Especially as media companies start to recognize the promotional qualities of otherwise infringing content, this will only get messier.
• Against net neutrality: While there's a good argument against net neutrality regulations, Dauman's reason for being anti-net neutrality is the false belief that if net neutrality was mandatory it would hamper anti-piracy efforts. This one is just wrong, as it appears Dauman doesn't understand net neutrality at all. And, of course, that doesn't even start to get into all the reasons why the entirety of Viacom's anti-piracy campaign is misguided (parts of which we've discussed above).
• US pressuring foreign countries to fight copyright battles for Viacom: Funny how Dauman is against gov't intervention when it comes to net neutrality, but when it comes to having the US gov't act as Viacom's personal police in international disputes over copyright law, he's all for it. Copyright is about incentives, not protection, and different countries have learned that there are many ways to create good incentives for content creation, that don't require excessive protection. Dauman's push to have US diplomats force other countries to follow the US model threatens all kinds of interesting new business models over what is, essentially, a private commercial dispute concerning an obsolete business model.
• The Pirate Bay: Dauman slams The Pirate Bay for making movies available, suggesting again that he's confused about how technology works. The Pirate Bay isn't making the content available, but acting as a search engine for content. It's like blaming Google for all the content on the web.
• Speaking of Google... Dauman then goes on to defend Viacom's $1 billion lawsuit against Google for infringing content on YouTube. He may be right here that it will be a defining landmark case, but he's still on the wrong side of it for a bunch of reasons we've discussed here repeatedly. Given how many (non-Viacom) companies are recognizing the benefits of having people share their content on YouTube, asking Google to automatically block all shared content is ridiculous. It would harm all of those who are happy to have their content shared, just to protect an obsolete business model.
• Google's reliance on intellectual property: Finally, Dauman notes that he can't understand Google's position in the YouTube suit, "given Google's own reliance on its software intellectual property." Again, this suggests Dauman doesn't actually understand either technology or intellectual property economics. Google doesn't rely on its intellectual property. Yes, it has many patents -- but that's not the basis of Google's success. The company relies on its ongoing ability to produce useful services that people want to use -- and then has built a business model that supports that (and supports it fantastically well, I might add). Studies have suggested that other sites have better technology than Google, but it's no longer the technology that keeps people coming back to Google -- but the overall experience. The clean interface, the better usability and the simple fact that many people feel that Google is trying to provide them with a useful service, rather than trying to figure out how to limit what they can do. That's not relying on intellectual property -- it's about creating a business model that supports what people want.

And there we go. All that in one speech. Almost all of it very, very wrong. It's hard to craft a forward looking strategy for a rapidly changing market when your boss seems to have nearly all of his assumptions wrong.

Filed Under: business models, copyright, drm, net neutrality, philippe dauman
Companies: viacom