The core principle of copyright is that the creator and copyright owner has the right to reproduction, distribution, public performance and the creation of derivative works of his or her creativity. Take that away and copyright is meaningless. Some would like that result. Others want to keep placing limits on those rights by expanding fair use. Fair use is a limit on a copyright owner’s rights, after all. But in the digital age companies like Viacom (disclosure, one of our board members) long ago teamed with a bunch of user-generated sites to develop uploading principles that would allow fair use while still respecting copyright owners.

As the disclosure documents surface from the Viacom-YouTube case, and the emails reveal how YouTube was what we always knew it was, a site designed to maximize “eyeballs” by posting copyrighted works without permission. They knew Viacom content like clips from MTV and Comedy Central would attract more attention than a video of a sleeping cat sliding off of a windowsill. In fact, they said so themselves: “Steal it! … We have to keep in mind that we need to attract traffic. How much traffic will we get from personal videos?” And they were right. They even acknowledged that “[i]f you remove the potential copyright infringements… site traffic and virality will dropt to maybe 20% of what it is.”

As long as there has been a commercial presence on the Internet, there has been a sea of “entrepreneurs” looking to profit from others’ work. Egregious cases like Napster and Grokster were shut down in federal court. Others tried to go legit. But as a fellow speaker on a panel of mine back in 2007 at South by Southwest said, when he went to Silicon Valley and met with venture capitalists looking to invest in the Internet, more than 90% were investing in sites generating traffic through copyrighted works they had not licensed. Less than one in ten had shown any interest in licensed distribution models.

Those seeking to profit from creators’ works without asking permission have also long put consumers in danger of spyware and identity theft, as the Federal Trade Commission recently pointed out and as I pointed out in testimony at an FTC-hosted event recently.

So what comes next in the case between Viacom and YouTube, now that we know what we already knew, that YouTube was operating consciously as an egregious violator of not just the rights of Viacom but countless studios, recording artists, composers, visual artists, and others? That’s left to folks smarter and more informed than me.

Here are some interesting perspectives from Ben Sheffner at Copyrights & Campaigns, who breaks down the legal aspects and reminds us that there is another suit against YouTube featuring the Premier League and the National Music Publishers Association, among others. (NMPA is also a Copyright Alliance member, and served on the board in 2007). Scott Cleland sees antitrust implications for Google. Andrew Orlowski highlights the fact that Google knew YouTube was in the wrong, but bought it anyway despite its do-no-evil mantra. A summary of useful materials from Viacom is here.

Let me quote one important passage from Sheffner here, a way for the judge to rule properly without shutting down a popular site:

But Viacom gave Judge Stanton an easy out in footnote 1 of its brief. In that footnote, Viacom says it is not pursuing any claim based on YouTube’s activities after May 2008, when, according to Viacom, YouTube began filtering for Viacom content without requiring Viacom to license its videos. While Viacom is careful not to formally concede that YouTube’s post-May 2008 activities are not infringing, it’s effectively letting YouTube off the hook as of that date.

Whatever you think of the settlement Google reached with authors and publishers, that settlement creates the hope that Google in some cases will consider adjusting its pursuit of a legal perspective of copyright that basically says take first, respond later. (Many authors objecting to that settlement would take issue with that assessment.) This opt-out vs. opt-in view of copyright that Google has embraced was the shining principle of YouTube as well. It turns copyright on its head, and it’s good to see that for now, anyway, the principle is still preserved in law.

ADDENDUM: It’s now mid-April, and new emails have surfaced in this case. There are still more shocking — or not so shocking — quotes from Google executives, such as this statement of the obvious: “YouTube’s business model is completely sustained by pirated content.” You can find them here.

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This entry was posted on Friday, March 26th, 2010 at 10:03 am by Patrick Ross and is filed under copyright law, fair use, internet, licensing, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.