Wednesday, March 24, 2010

Fair Use, Intellectual Property and Corporate Whoredom in Viacom vs. Youtube

Last week, the opening briefs of the upcoming Viacom v. Youtube lawsuit were made public. In essence, Viacom alleges that because Youtube allows people to upload video to the internet (?!), they have taken insufficient action to protect Viacom's intellectual property online.

Naturally, Youtube will not be taking this one lying down. Their chief counsel's initial statement strikes back hard at Viacom's own practices, including their dishonest use of Youtube itself:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube -- and every Web platform -- to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.

Viacom’s brief misconstrues isolated lines from a handful of emails produced in this case to try to show that YouTube was founded with bad intentions, and asks the judge to believe that, even though Viacom tried repeatedly to buy YouTube, YouTube is like Napster or Grokster.

That's right: after a company repeatedly attempts to purchase another company, the first company is suing the second over a problem that is largely the fault of the first company. If this were anything but an argument about internet intellectual property law, it would get laughed out of the room.

But obsessive corporate control over what they perceive as their rights to intellectual property has gotten completely out of control, so we have to take ridiculous claims like Viacom's very seriously: the ruling they are asking for would effectively end – or at least severely hamper – free video uploading on the internet.

Of course, the very disorganization with which Viacom pursues intellectual property claims is indicative of the sad state of education about intellectual property issues in general. Although all video works are automatically copyrighted by their creators, in many cases that ownership does not entail the right to demand that their content be removed from view. It is for this reason, and because of the provisions of the Digital Millenium Copyright Act (which, although it's regressive and annoying piece of legislation, is at least quite clear about instances like this), that I don't expect Viacom to get anywhere.

But despite its insanity, the absolutist view of intellectual property control seems to be prevailing over time - even among people who should know better. Just to cite a personal example, I got into a number of arguments with friends (even one former teacher) over my use of copyrighted material in this video, despite the fact that it conforms to the textbook definition of fair use:

I shouldn't complain, of course: that was the point of making the video in the first place. The thing is, fair use is really very straightforward: so long as you don't use the entire work to make profit for yourself (the acceptable percentage depends on the medium), and particularly if you're adding your own content (ie, remixing a video), it's okay to share whatever content you want. (For more info, check out the Center for Social Media's Code of Best Practices in Fair Use for Online Video.)

In other words: YOU CAN LEGALLY POST CLIPS FROM VIACOM SHOWS ON THE INTERNET, so long as you're respectful about it. I'm sure that some of the uploads Viacom will cite violated these principles, but constrained as they are by the DMCA, Youtube is actually extremely overzealous about taking down videos that it has any doubt about, to the detriment of thousands of artists and well-intentioned bloggers.

Even if it wasn't mostly their fault to begin with, I have very little sympathy for the view of intellectual property control that Viacom's case rests on. It would be unconscionable if they brought Youtube down over this; and even more unconscionable if the case ruling damaged the fair use doctrine more generally.


  1. i can't wait until every company has pulled its material from youtube and fragmented it all on dozens of proprietary sites like vevo and the only content youtube still hosts are anime mashup videos edited to linkin park songs.

  2. Seriously. It's getting to be that, or move their servers to that "island nation"/abandoned oil derrick off the coast of england.