The Viacom vs. Google/YouTube lawsuit has become something of a running joke in legal circles over the amount of time it's taken to run through the discovery process and actually get the lawsuit moving. However, people are now expecting the case to finally move forward. Both Google and Viacom have asked for summary judgment, claiming that there's enough evidence that a trial isn't needed. That's all to be expected. What's odd, though, is that Viacom's filing has pretty much the entire "background" section redacted. Check out page two on the document below:
I'm trying to figure out what could possibly be so confidential as to require redacting in such a case. Maybe the details of why Viacom thinks Google can identify which clips are infringing when even Viacom couldn't properly identify infringing clips and included a bunch that it had put online itself. Because thinking that Google can figure out Viacom's intentions when even Viacom can't figure them out certainly seems like a pretty big mystery to me.
Copyright maximalists who hate the DMCA's safe harbors often claim that service providers can easily tell what content is infringing and which is not. This is, in fact, a key part of the argument made by Viacom in its lawsuit against Google over YouTube. It claims that YouTube must know that the clips are infringing and should be taken down. There's just one problem: even Viacom doesn't seem to know which clips are infringing and which are not. It turns out that, among the many YouTube clips included in the lawsuit, approximately 100 were uploaded on purpose by Viacom. Yes, you read that right:
Viacom sued Google over clips it claimed were infringing, that Viacom purposely uploaded to YouTube.
That alone should show how ridiculous Viacom's claims are in this lawsuit. There is simply no way for Google to know if clips are uploaded legitimately or not. Oddly, however, the court has now allowed Viacom to withdraw those clips, but lawyers like Eric Goldman are questioning how this isn't a Rule 11 violation for frivolous or improper litigation. But, more importantly, it demonstrates that even Viacom has no idea which clips are infringing and which are authorized. Given that, how can it possibly say that it's reasonable for Google to know?
Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:
Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group
Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.
Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.
Someone once told me that Viacom's top lawyer, Michael Fricklas, has been known to read Techdirt on occasion. I have no idea if this is true, but it still is interesting to watch him give a lecture to some Yale law students where he offers a somewhat nuanced position on copyright issues (thanks to JJ for being the first of many to forward the video to us), but which repeatedly seems to leave out certain pertinent facts:
He starts out by saying that he's a strong supporter of fair use, and doesn't like the idea of having to get licenses for creating new works -- but is concerned about the "exact copy" problem. So, basically he's in favor of fair use for creating new works, but not direct distribution.
He discusses copyright vs. free speech -- and insists that there's no "tension" between the two (despite many recent studies suggesting the exact opposite). Of course, he does a bit of a twist there, by saying that copyright is pro-free speech because it creates incentive for speech. The problem with this statement is that while that's the theory, the evidence for it is somewhat lacking. However, there is tremendous evidence of cases where copyright is used to stifle speech -- and of all the massive extensions and changes in copyright laws over the past 200 years, almost all have served to stifle more speech than they have encouraged.
He then trots out the industry's own numbers claiming how much copyright contributes to the economy, even though those numbers are based on a variety of questionable assumptions, including the idea that all content covered by copyright is only created because of copyright. Along those lines, he also credits copyright for things like the iPod and the Kindle, saying that no one's buying those devices just to look at them. This is correct -- but note the trick. He did not say that it was content that drove the iPod and the Kindle, but copyright. He's wrong. It's content. Not copyright.
He notes that some say that "unlicensed IP" might drive this innovation, but he favors "sustainable innovation" (as if anyone doesn't). And then he makes this odd statement:
"A more sustainable innovation is one where, if you make an investment, you have the opportunity to make a return."
Now, that's a great (by which we mean, useless) statement, because it's obviously true. Who would ever deny that? But it's a sneaky and disingenuous statement, because it implies something that's simply not true: that without copyright or without restrictive licensing, the investors do not have an opportunity to make a return. As we've shown over and over again, plenty of content creators who "free" their IP have not only made a return, but have made a better return than they did under older models that relied on copyright. But it's a sneaky trick that's often used by folks in this debate. You set up this strawman argument and then knock it down, despite the fact that no one ever made the argument, and you argue that something is fact (that you can't make a return) when it's empirically false. It's frustrating that this argument still gets made and people should really start calling the folks who make it out whenever they state such falsehoods.
Later, he talks about the "losses" from piracy, insisting that the findings come from a "sophisticated" analysis, not just from counting all downloads as lost sales. Of course, these numbers came from the same study process that led to some results that even the MPAA (of which Viacom is a major member) had to later admit were bogus. This is also the same "sophisticated analysis" that includes ripple effects in one direction only, so it's actually double, triple, quadruple, quintuple counting some numbers, while totally ignoring how those numbers actually help the industry in other ways. So, sorry if I don't take those loss numbers seriously, no matter how "sophisticated" he thinks they are. They're not. They're only "sophisticated" in how misleading they are.
He does have a short discussion on RealNetworks' RealDVD offering, which he implies enables piracy -- even as he admits he wants the functionality, where he could move a copy of a legally purchased DVD to his hard drive for backup or other viewing, but says his "concern" is that people would do this with Netflix DVDs. He believes that the problem with this is that RealNetworks had to break the encryption put in place by the studios. Notice, again, what Fricklas conveniently leaves out. First, he leaves out the fact that it is already legal for people to make backup copies of content they legally own -- but, thanks in part to Hollywood lobbying, Hollywood itself can block that right, simply by putting encryption on something and then saying that you can't circumvent it without breaking the law (thank you, DMCA anti-circumvention clause). He also leaves out (conveniently) the fact that RealDVD doesn't actually "break" the encryption and that the resulting copy still includes DRM that prevents copies. The fact that he's "concerned" about the Netflix model is of no consequence whatsoever. McDonalds is "concerned" about Burger King, but that doesn't give them a legal right to block them from being in business.
Then he pulls out the ever popular "$200 million movie" myth, which I thought was a favorite of NBC Universal, but I guess Viacom is going with it now as well. It's not a myth that there are movies that cost $200 million. The myth is that people want movies that cost that much. No one watching a movie cares how much it costs. They want good movies, no matter how much they cost. I'm sure people would like some $1 billion or $100 billion movies as well, but that doesn't mean we need to grant Viacom extra special legal privileges to make sure it can make a $1 billion or $100 billion movie profitably. People like good movies. Viacom wants to make profitable movies. We agree. But the $200 million number is meaningless. There are ways to make good movies for both less and more than $200 million and there are ways to make profitable movies even in the face of piracy. The claim that piracy undermines the $200 million movie, which is some sort of "necessity," is simply not supported.
On top of that, he tosses out the debunked claim that if something is "free" it means it's devalued. That's simply not true, no matter how many times people repeat it. If it were true, and the content had no value, no one would want it. Value and price are two separate things.
Then, he discusses the "Kanye West" MTV Video Awards "Imma let you finish..." example, by talking about how Viacom used various filtering tools to pull that clip off of various "unlicensed" user uploaded video sites. But he also talks about how they drove people to use the official Viacom clip, which allowed them to "participate in the benefit" of the video. Now, that's interesting, and it's great that they put their own clips up and made them embeddable. But, again, it's important to note what he left out. In forcing everyone to view the content through Viacom directly, it also increased Viacom's own cost in terms of bandwidth. The advantage of letting others help host and distribute the content is that it actually eases that cost.
His discussion on kicking people off the internet via a "three strikes" mechanism is getting much of the attention on other sites, because he mentions, totally in passing, that suing users "feels like bullying." This may sound like a big deal -- and certainly some other sites (and industry lawyers) are making it out like a big revelation, but it's not. The movie industry has never sued individuals for such things -- only the recording industry has. And even way back in the Jack Valenti days, he talked about why he didn't like the idea of suing individuals. So, this isn't a shift in positioning at all. Rather, it's a repeat of the new silly strategy of some in the industry to try to pretend that kicking people off the internet is "consumer relief." Not quite. Shooting someone in the leg instead of the head is certainly "better," but I doubt that the person shot in the leg considers it "relief."
Towards the end of that discussion, though, he makes another interesting statement, saying that: "there's no way to deal with this problem other than to move viewing into licensed contexts." Except, that's not true. There are other ways. It's called setting up a business model where people actually do have a reason to buy things, whether they view the content in a licensed or unlicensed manner. I recognize he's on the legal side, rather than the business side, but the idea that the "only" way to deal with piracy is to attack it, rather than embrace it, is a position that the industry long ago should have learned was a mistake.
His final point is discussing how DRM "enables new business models," and he more or less dismisses criticism of DRM as really just being criticism of "bad" DRM (of which there is plenty). However, what struck me, was how none of the "new business models" he described actually required DRM at all. You could do them all in some way entirely without DRM. All the DRM does is add restrictions. Of course, rather than adding restrictions, why doesn't the industry focus on employing new business models that give users more and make them want to buy, rather than trying to enforce artificial limitations?
On the whole, it is an interesting video, and well worth watching, but it conveniently misstates or leaves out important facts throughout. Unfortunately, the Q&A session that follows the presentation wasn't included, so I have no idea if any of the students challenged some of his assertions or pointed out some of the points that he left out. Anyway, maybe we can hope that Fricklas is, in fact, an occasional reader here and can stop by to address those questions and omissions.
With the judge tossing the Veoh/Universal Music lawsuit last month, it certainly appeared that Viacom might be on weak ground when it came to its lawsuit with Google over YouTube infringement. As with the Veoh suit (which was nearly identical) the DMCA's safe harbors on service providers almost certainly should protect the service provider from the actions of its users (which is a good and reasonable thing). However, I'd been hearing rumors for a little while now of a "smoking gun" from Viacom, and Greg Sandoval is now reporting on the same thing: that during discovery Viacom came across emails showing that YouTube employees "knew" and discussed infringing content on the site and did nothing about it. On top of that, some YouTube employees supposedly uploaded infringing content as well. The key question, then becomes, did YouTube have "actual knowledge" of infringement, and if so, does that remove the DMCA's safe harbor provisions.
But, of course, nothing is that simple. When you're talking about a corporation, what constitutes "actual knowledge"? Is it one employee knowing about things? Is it one executive? And how does fair use play into all of this? Even if YouTube employees saw content that was uploaded in an unauthorized manner, were they then supposed to make a fair use determination as well? And, of course, none of this is particularly simple. According to Sandoval, the same discovery process may have turned up the fact that Viacom employees were also caught uploading infringing materials. This then opens a whole new can of worms. If even Viacom can't determine what's infringing or what's legit, why should YouTube be expected to have that knowledge. On top of that, if YouTube saw that people at Viacom were uploading such content, then how was it possible for YouTube to have any idea that Viacom didn't want the same content uploaded by others? Finally, even if this does constitute "actual knowledge," wouldn't it then mean that the liability for YouTube was limited to the few files of which they had knowledge, rather than the wider spectrum of infringing content? Does knowledge of a single infringing content take away all safe harbors on the other content?
Suddenly, the lawsuit may have become a lot more interesting in that it may address some of those questions...
Boing Boing points us to the news that someone who was trying to protest the fact that a new Viacom animated movie was hiring Caucasian actors to play Asian or Inuit characters found that the t-shirts she was selling via Zazzle were taken down due to a claim that they violated Viacom's intellectual property. It's difficult to see what the violation of intellectual property here is. The shirts don't use any imagery from the movie itself. The t-shirts were designed by the woman herself. The only thing they have is a mention of the name of the movie -- but that shouldn't be enough to force the content offline. On top of that, plenty of the shirts don't seem to name the movie at all, but do name one of the characters. Again, it's quite difficult to see how this is an intellectual property violation, in any way. The explanation that Zazzle gave isn't entirely clear -- as it might not be a case of Viacom complaining directly, but Zazzle taking the matter into its own hands (which is equally troubling). Whether it's Viacom or Zazzle, this appears to be an overly aggressive attempt to stop perfectly reasonable public speech by hiding behind intellectual property claims. Update: Someone from Viacom stopped by in the comments to let us know that it has no problem with the shirts. Zazzle just took the shirts down on their own, and Viacom has asked them to put the shirts back up. Nice to see Viacom respond in this manner.
Earlier this week when Hulu cut off Boxee, supposedly at the request of its content partners, there was some speculation that the real pressure may have come from the cable companies who are losing customers at a pretty rapid clip. And, while the content companies pretend to deny it, the fact that people can get so much content for free online is almost certainly contributing to that situation.
Now, in theory, this should be a good thing for the TV guys -- who you would think want as many people watching their shows/channels as possible. But, the problem is the business model. Doesn't it always seem to come down to the business model? The TV networks make so much money by selling the channels to the cable companies, that they're scared to death of losing that revenue. We saw a hint of this late last year when Viacom and Time Warner Cable played a big game of chicken over channels like Comedy Central and MTV.
However, now reports are coming out that the cable companies are negotiating with TV programmers to offer their TV content exclusively via their cable internet offerings. In other words, forget Hulu and routing around the cable company and the $80/month they're charging you. You'd have to keep your cable, even if you don't want it, just to get access to many TV shows over the internet (well, legally). Not surprisingly, both the cable companies and the TV programmers seem to like this sort of deal: the programmers continue to get their big fees from the cable companies, and the cable guys avoid losing many more subscribers. Comcast's CEO Brian Roberts is even saying "Online video is our friend, not our enemy."
And, to some extent he's right. If Comcast is going to survive it does need to look at online video as a friend, rather than an enemy -- but the problems may come about if they think that they can force customers to only get online TV if they keep their cable TV service at such a high price. Because, while these deals may make sense for the TV networks and the cable guys, they seem to be forgetting the customers -- many of whom have received a nice taste of TV online for free, and aren't going to be happy about having to pay up for it. The problem is that these cable guys aren't adding any new value. In actuality, it seems like they're looking to take away value from what's already out there -- and that never works. It will likely just lead to increased piracy, increased anger at the cable companies, and a continuing of the downward spiral. But, these days, watching old school companies accelerate their own downward spiral happens so often, you almost have to assume it's likely.
While this happens pretty frequently, you can bet that battles like the one going on between Viacom and Time Warner Cable are going to become more and more bitter in the next few years. Unless an agreement is reached (which is likely), Time Warner Cable customers may lose access to popular Viacom channels such as MTV, Nickelodian and Comedy Central. The issue is that Viacom wants to significantly raise the costs to TWC for those stations (between a 22% and 36% price increase). TWC would just pass those costs on to consumers, and the company accurately realizes that this would seriously piss off customers at a time when customers are increasingly realizing that they can drop cable TV and just go online for much of the programming they want.
And that, actually, is part of the issue. One of TWC's big complaints is that Viacom now offers most of the shows on those channels for free online -- where TWC isn't able to get any of the associated ad revenue. The real question is who is in a stronger bargaining position. If TWC dumps Viacom stations, and people start realizing they're fine with just being able to view the content online, both TWC and Viacom will likely lose out (the ad revenue that Viacom gets online won't come close to matching the carriage fees from TWC). The whole thing is a big game of chicken, but we're going to see it play out many more times, as the relative value of the cable provider as the exclusive delivery mechanism for television content starts to decrease. Of course, that only makes the content companies want to increase prices more to make up for the loss -- and the cycle actually accelerates. Both sides stand to lose out unless new arrangements are reached.
There are already a ton of lobbying/industry groups out there that push "anti-piracy" campaigns. You've got the RIAA, MPAA, BSA and ESA, each covering different industry segments. Then, of course, a year ago, a bunch of entertainment industry companies got together and put together the ridiculous Copyright Alliance, whose main mission in life seems to be to spew utterly false propaganda in favor of stronger copyrights at every turn. But, apparently, that just wasn't enough. So, word came out this week of a new anti-piracy lobbying "supergroup" with the innocuous sounding name "Arts+Labs." The big difference here? Well, the entertainment companies convinced a few tech companies to join up as well: AT&T, Microsoft and Cisco. AT&T, of course, has been drifting towards filtering its network -- and Cisco wants to sell filtering equipment. Microsoft, of course, has always been vocally against "piracy" even while quietly admitting how much piracy benefits the company.
This new group will be headed by Mike McCurry -- who you may remember as the former head of the anti-net neutrality group "Hands Off the Internet" who had a slight problem in that he couldn't stop lying, and simply ignored it when people called him on it. My favorite, of course, was his claim that Google didn't pay a dime for its bandwidth, and net neutrality was all about making others pay for Google's bandwidth usage. I challenged McCurry to swap his home broadband bill with Google's (which, according to McCurry was "not a dime") to which, Hands Off responded with deafening silence -- though, the group had no problem then lying about our positions on things when it suited the group (and, again, not responding when I asked them to correct their false statements about us).
So, expect a string of similar tactics from this group.
To begin with, the group appears to be positioning "piracy" as something similar to "viruses" or "spam," suggesting an equivalency that should lead to widespread use of filtering equipment. Of course, they seem to be missing the fact that piracy isn't about others with nefarious intent trying to harm or scam you -- but about people getting content that they want. But in Mike McCurry's "up is down, down is up" world, piracy is apparently something that consumers themselves need to be protected from:
"We want consumers to have exponentially greater opportunities to access creative content in a variety of formats, and with confidence that they are safe from viruses, hackers, malware, illegal file trafficking and other net pollution that puts them at risk."
A judge has ruled that online video hosting site Veoh is not guilty of copyright infringement for videos uploaded by its users. The judge made the proper ruling here, noting that the DMCA's safe harbors protect Veoh. The lawsuit was brought by adult video entertainment firm Io, who was upset that Veoh's users kept uploading clips from its films. As the judge properly noted, Veoh follows all the rules necessary under the DMCA to avoid liability (this doesn't mean that the individuals doing the uploading aren't liable, however).
While this may seem like a small case, it is quite similar to Viacom's infamous lawsuit against YouTube/Google. Considering that YouTube follows the DMCA's rules in a similar manner to Veoh, this ruling suggests that YouTube is also protected by the DMCA safe harbors, just as many had stated from the beginning. The key issues raised by Io (and also raised by Viacom) is that these sites lose their DMCA safe harbors because they take action on the content, often transcoding the content from one format into flash. However, the judge in the Veoh case trashed that argument pretty easily:
Here, Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the third party software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users
The folks over at Google are, understandably, pretty happy about this ruling, which confirms their position that YouTube is protected: "It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights."