Viacom v YouTube

Jeff Jarvis says that Viacom is “boneheaded” to attack its customers in the effigy of Viacom. I think Viacom’s position is stronger perhaps than Jeff does, based on related prior court decisions.

I commented on his post, but inadvertently posted the comment early, and my followup attempts have been blocked – because of too many links or too many comment attempts, I guess. I’m sure Jeff will clear my comment from queue but wanted to combine the two comments in one post here.

Here is my first (partial) comment:

Viacom has precedent on its side. The most relevant case is A&M Records, Inc. et al. v. Napster, Inc.

“Napster allow[ed] its users to: (1) make MP3 music files stored on individual computer hard drives available for copying by other Napster users; (2) search for MP3 music files stored on other users’ computers; and (3) transfer exact copies of the contents of other users’ MP3 files from one computer to another via the Internet.”

The appeals court found that because mp3 files are not transformative, the downloading was commercial (“repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies”), and the market for recordings was harmed, Napster’s users’ exchange of mp3 files was not fair use.

Here’s a link to the opinion: A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (ND Cal. 2000)

Not everything on YouTube infringes, but I would expect the courts to find that the following do infringe: (a) posting whole movies or TV episodes in chunks or (b) posting the “heart” of a work, e.g. the climactic scene, best laugh lines, etc. (“Heart” here in the sense from Harper & Row v Nations Enterprises, an early fair use case.)

Jeff notes U.S. code that states that a service provider shall not be liable for infringement by users – but it continues “if the service provider …upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” Viacom’s press release alleges that YouTube’s “strategy has been to avoid taking proactive steps to curtail the infringement on its site…” (Note, I haven’t read the complaint, which I couldn’t find in a very quick search.)

Napster was found to infringe because it facilitated file transfer and search. In addition to these activities, YouTube also stores potentially infringing files on its own servers, which Napster did not.

Whether Viacom can execute this case without angering consumers and damaging its brand is another question. The risk is lessened because Viacom isn’t primarily a consumer brand, and, unlike RIAA, Viacom isn’t going after individuals. But it certainly has good business reasons to prevent Google from preempting any download services or distribution agreements it might make at its own discretion. Based on A&M v Napster, its complaint appears to rest on solid precedent.

UPDATE: I think I should be more responsive to Jeff’s actual point:

Viacom complains about YouTube but, in truth, they’re complaining about their own viewers. They whine about theft but, in fact, they’re whining about recommendation, about their audience finding them more audience. Viacom is trying, singlehandedly, to turn the TV industry into the music industry.

I think that Jeff is reading a bit too much into this. Yes, the complaint mentions users. But if Viacom wanted to turn the TV industry into the music industry, they’d be suing individuals. They’re a lot smarter than Jeff gives them credit for. Here’s an MTV (Viacom) executive on Feb. 13:

“We need to open up our Web sites and content both for consumers and for other companies,” Mika Salmi, MTV Networks president of global digital media, said in an interview last Friday.

The move [making MTV content available for ebedding] is part of a strategy to bring Viacom’s Web sites up to “Web 2.0″ standards, Salmi said. “Part of that is allowing people to take our content and embed it and make (their) own things out of it–whatever they want,” he said.

That doesn’t sound like whining about recommendation or finding more audience. Viacom is merely trying to keep some control out of Google’s hands – a prudent strategy if there ever was one.

UPDATE 2: Fred Wilson disagrees.  I’m not sure how this theory would play in court.

Given the number broken links we all experience on YouTube do to take down requests, I have a feeling that Viacom’s case isn’t so open and shut. … This is not Napster all over again by a long shot as much as Viacom would like it to be.

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