Viacom gets panties in bunch over YouTube - Lawyers deployed

[eldaec]

http://news.bbc.co.uk/2/hi/business/6446193.stm

Entertainment giant Viacom Media has announced that it is going to sue web search engine Google and video sharing website YouTube for $1bn (£517m).
Viacom - whose brands include MTV and Nickelodeon - says Google, which owns YouTube, is illegally using its shows.

It said YouTube was guilty of "massive intentional copyright infringement".

Viacom alleges that about 160,000 unauthorised clips of its programmes have been loaded onto YouTube's site and viewed more than 1.5 billion times.
......

"Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws."

....

"There is no question that YouTube and Google are continuing to take the fruit of our efforts without permission and destroying enormous value in the process," it said.

"This is value that rightfully belongs to the writers, directors and talent who create it and companies like Viacom that have invested to make possible this innovation and creativity."

.....

Because yeah, 10 second clips of Pimp my Ride must really be hitting those DVD sales.

That said I imagine Viacom are right about the legality of the thing - ho hum.

[tazelbain]

> Lawyers deployed
Someone needs to make a legal system RTS.

[HaemishM]

Fuck Viacom. YouTube is FREE FUCKING ADVERTISING FOR THEIR SHOWS.

Yes, they probably are in the legal right. But for fuck's sake, it's just not that big a fucking deal.

[Roac]

Fuck Viacom. YouTube is FREE FUCKING ADVERTISING FOR THEIR SHOWS.

Yes, they probably are in the legal right. But for fuck's sake, it's just not that big a fucking deal.

Stop.  Think about the amount of money that YouTube is making off advertisements; quite a bit.  Now think about the amount of money that Viacom makes from this "free advertisement"; zero.  There is actual, demonstrable, financial impact since Viacom could theoretically host their shows on their site, along with ads, and make money that way.  Some places are doing this, for example Comedy Central (owned by Viacom).  Remember that the only way TV shows make money on TV is by ads; YouTube is directly dipping into their revenue stream.

[Stormwaltz]

I'm feeling contrarian this morning.

There is actual, demonstrable, financial impact since Viacom could theoretically host their shows on their site, along with ads, and make money that way.

(emphasis mine)

But until they actually host their shows on their site, there is no "actual, demonstrable, financial impact" there.

YouTube polices SNL and Comedy Central stuff pretty rigorously, because those guys do have their own streaming sites, and have asked YouTube to sweep their stuff out.

[HaemishM]

Yeah, when Viacom starts hosting all their own shit, call me. Otherwise, I'll be in the corner watching shit on YouTube.

And if Viacom's ratings go up because of YouTube driving people to the actual shows, Viacom WILL profit by being able to sell advertising space for more money, or more advertising space. Seriously, Viacom doesn't lose dick with the situation as it is.

[Llava]

And there's something to be said for the convenience YouTube offers over Comedy Central's hosting.

For instance, if I want to show my parents when Colbert cracked up in the Filliam H. Muffman bit, I can just search "Filliam H. Muffman" and the right clip will come up.  I don't have to go episode by episode or through whole episodes.  Then, if I want to compare that to something on To Catch A Predator, I don't have to go to an entirely different site with an entirely different interface.

Point being, they can host all sorts of stuff, but I'm only ever going to watch it on YouTube.  If it's not there, I just won't watch it.

[Roac]

But until they actually host their shows on their site, there is no "actual, demonstrable, financial impact" there.

While you're here, would you mind emailing me a copy of NWN source?  Since I don't own or intend to purchase that product, there would be no actual fiscal impact.  Nor would there be until Bioware offered it for sale.

Somewhere between a third and half of Viacom's revenues come from advertisements.  As such, part of any strategic plan is to figure out how to get eyeballs on their ads which include both current product/ad revenue, and any planned or even unknown future product/ad revenue. Content which isn't hosted on their websites aren't done so because they feel they can make more money by holding back, likely either to get attention to their TV broadcasts or to later DVD sales.  Which, in turn, means that any such release is damaging to these other revenue streams.  Or maybe they would like to host a certain show.  Sucks that it's already been available on YouTube for however long, and not getting them that ad money.

My inbox is waiting.

[HaemishM]

But until they actually host their shows on their site, there is no "actual, demonstrable, financial impact" there.

While you're here, would you mind emailing me a copy of NWN source?  Since I don't own or intend to purchase that product, there would be no actual fiscal impact.  Nor would there be until Bioware offered it for sale.

Not the same thing, since you don't download a copy of the video from YouTube, only view it online.

Somewhere between a third and half of Viacom's revenues come from advertisements.  As such, part of any strategic plan is to figure out how to get eyeballs on their ads

You mean like viral marketing on YouTube? Or just having their videos watched by a bazillion eyeballs who might turn into a billion viewers?

 Which, in turn, means that any such release is damaging to these other revenue streams.

Except that it's not, because you can't count every viewer on YouTube, or even of the original broadcast as a sale of the other revenue stream.

[Murgos]

Case will get settled out of court for an undisclosed compensation and with the understanding that YouTube is the distributor in the future of Viacom media on the internet in return for a portion of the ad revenues.

Another major media conglomerate will smell money, sue Google, settle and YouTube will be able to legally distribute their material.  Wash, rinse and repeat.

End result?  Internet TV and Movies paid for by ad dollars and brought to you by Google and Youtube.

[CmdrSlack]

But until they actually  host their shows on their site, there is no "actual, demonstrable, financial impact" there.

That doesn't matter from a legal standpoint.  YouTube is cutting into Viacom's market (actual OR potential) for revenue based on ads and page views that result from the copyright protected materials that it owns.  While you may be right from a philosophical perspective, the law says otherwise, IMO.

[tazelbain]

Don't forget the DMCA.  Glad to see that stupid ass law is screwing the big as well as the little guy.

[Roac]

Not the same thing, since you don't download a copy of the video from YouTube, only view it online.

Viewing things online does download - it just may or may not be permanent.  As for YouTube, it's easy to save the flv files and load them up again.  Harder than "Save As...", but not by much since there are plenty of directions on the net.  Google it for irony. 

Edit:  It took me longer to download the actual movie file than it did to find functional directions on how to do it.  I can now save/play YouTube vids at will.

You mean like viral marketing on YouTube? Or just having their videos watched by a bazillion eyeballs who might turn into a billion viewers?

Looking at the product (a show) does nothing for viacom.  They don't want you looking at their content.  They would be happy if you never saw their content, because they make no money off you viewing their content.  They make money off you looking at their advertisements or buying their product.

Except that it's not, because you can't count every viewer on YouTube, or even of the original broadcast as a sale of the other revenue stream.

Yes you can.  It counts however the owner decides it counts.  Again, if Viacom thought they would make money by posting more stuff on the net with ads, they would have done it.  They could be wrong; but that's not your call (or YouTube's) anymore than you get to decide you're only going to put $3 on the counter to watch a movie in the theatre, or bring a camera in to make priated copies of later.

[schild]

Youtube had it coming. Unfortunately, it's physically impossible for Youtube to screen EVERY video that comes through there and there are people who make a living off getting those video blogs out on a timely basis (don't ask me how). As such, if Youtube started putting in a screening delay, they would hurt those people a lot more than Viacom. Getting to the actual trial though will cost Viacom more than they have lost from Youtube, guaranteed. Winning the case? A LOT more. See, all of this "finanacial loss" implies that people would have watched Viacom stuff in some capacity and their viewing would have made Viacom money.

No, it doesn't. Many, many people do not buy stuff based on advertisements. Many do, yes. But I imagine the crossover to the web-savvy pirating Youtube crowd isn't very high.

It's sort of like calling a person who bittorrents stuff a thief. Sure, in the noble sense of the word, he is MOST DEFINATELY, a thief. Unfortunately, that guy probably wasn't going to buy the product to begin with. As such, while he may reform by the time you have your next movie/game/album out, he did just get it for free and you have to deal with it.

All that said, Viacom is just being a bunch of pantywaists.

[Samwise]

There is actual, demonstrable, financial impact since Viacom could theoretically...

The words in bold do not go together.

[CmdrSlack]

See, all of this "finanacial loss" implies that people would have watched Viacom stuff in some capacity and their viewing would have made Viacom money.

No, it doesn't. Many, many people do not buy stuff based on advertisements. Many do, yes. But I imagine the crossover to the web-savvy pirating Youtube crowd isn't very high.

Doesn't matter.  YouTube's best defense is that they're a service provider within the definition of the DMCA -- they cannot be expected to police what those wacky users do.  Viacom will likely argue that they're more like P2P companies that encourage/endorse piracy.  Whether the users of YouTube really WOULD be money in the bank for Viacom is immaterial.  It doesn't matter one iota -- copies of protected material were made and distributed.  For purposes of the copyright act, that's all you really need.  There's other nitpicky stuff that can get argued back and forth, but at least for purposes of the lawsuit, it doesn't really matter what kind of financial loss Viacom argues -- it does for SOME types of claims, but not all.

You may be right about the habits of the average YouTube user, but that's not really important for Viacom to win.  Assuming that by "win" we mean, "go to a full trial and emerge the winner."

[Roac]

No, it doesn't. Many, many people do not buy stuff based on advertisements. Many do, yes. But I imagine the crossover to the web-savvy pirating Youtube crowd isn't very high.

Doesn't really matter if nobody buys stuff off YouTube ads; YouTube makes money from the ads themselves.  That is money earned from someone else's content.

The words in bold do not go together.

The actual loss is what YouTube earned as a result of profiting from someone else's work.  Viacom's potential profit is only theoretical in the sense that they haven't done it for some specific shows.  The point isn't to say that $100 earned by YouTube is $100 lost by Viacom; in some alternate universe Viacom could have earned a tenth of that, or ten times as much.  It doesn't matter which.  All that matters is that someone else is profiting from their work.  This violation is worse than peer to peer issues because there is actual profit motive.

[Krakrok]

Looking at the product (a show) does nothing for viacom.  They don't want you looking at their content.  They would be happy if you never saw their content, because they make no money off you viewing their content.

This isn't true. There is value in owning a culture. Just ask Microsoft Business Group President Jeff Raikes who said he'd rather have people pirate Windows than use something else.

[Soln]

this is a negotiation tactic.  Nuff said.

[HaemishM]

In other words, to boil it all down, copyright law has been bought and paid for to fuck everyone who isn't a big bankrolling media company, using the normal consumer as their phallus.

And yes, it is a negotiation tactic. Viacom didn't like the numbers YouTube was throwing at them. It'll get settled out of court and copyright laws will still be a corruption of the intent of the original laws.

[Triforcer]

this is a negotiation tactic.  Nuff said.

Agreed.  ALmost nothing goes to trial, and when it comes to companies this big NOTHING goes to trial.  The consequences losing for either side are way, way too fucking high.

[Righ]

But its always good to watch Roac twist and turn arguments in order to stand up for the little guy.

[shiznitz]

No one was looking to help the little guy when the RIA stormtroopers went after individuals. Now that corporations are suing corporations we might get some goddamn clarity - hopefully sane clarity.

[Roac]

But its always good to watch Roac twist and turn arguments in order to stand up for the little guy.

There are no little guys in this lawsuit.  That said, little guys are wrong sometimes too.

[Trippy]

But until they actually host their shows on their site, there is no "actual, demonstrable, financial impact" there.

While you're here, would you mind emailing me a copy of NWN source?  Since I don't own or intend to purchase that product, there would be no actual fiscal impact.  Nor would there be until Bioware offered it for sale.

Not the same thing, since you don't download a copy of the video from YouTube, only view it online.

Actually you do download a copy of the video to your machine -- it's sitting there right now in your browser cache. Flash Video is not a "pure" streaming format like, say, ASF. If you want to keep a copy of a YouTube video, or any other FLV/SWF video around, use IE (yes I know, but keep reading) to watch the video and then just drag it out of your Temporary Internet Files folder when it's done loading. Firefox and Opera make it a super pain in the ass to copy things out of their caches which is why I recommend using IE to do this. Of course, you do have to be careful if you are trying to copy a FLV video from a dodgy site when using IE.

[Trippy]

See, all of this "finanacial loss" implies that people would have watched Viacom stuff in some capacity and their viewing would have made Viacom money.

No, it doesn't. Many, many people do not buy stuff based on advertisements. Many do, yes. But I imagine the crossover to the web-savvy pirating Youtube crowd isn't very high.

Doesn't matter.  YouTube's best defense is that they're a service provider within the definition of the DMCA -- they cannot be expected to police what those wacky users do.

That didn't work for Napster and it wouldn't work for Google. YouTube is not only doing the conversion of copyrighted material from one format to another (converting them to FLV format), creating illegal derivative works, it's actually *hosting* the files, which even Napster didn't do (it was just the index for P2P files).

[Roac]

Firefox and Opera make it a super pain in the ass to copy things out of their caches which is why I recommend using IE to do this. Of course, you do have to be careful if you are trying to copy a FLV video from a dodgy site when using IE.

You can just reference them by a link.  There's a handy script you can add to the Greasemonkey extention that makes it easy to d/l as well.

[Trippy]

Firefox and Opera make it a super pain in the ass to copy things out of their caches which is why I recommend using IE to do this. Of course, you do have to be careful if you are trying to copy a FLV video from a dodgy site when using IE.

You can just reference them by a link.  There's a handy script you can add to the Greasemonkey extention that makes it easy to d/l as well.

Referencing them by a link requires reading through the source or memorzing the path format and then pasting in the cryptic ID code for the video. Greasemonkey works well cause it can put a download link on the page for you and Opera has User JavaScript which is basically the same thing, but the regular UIs for accessing cached content on Opera and Firefox is just an incredible PITA.

[Krakrok]

That didn't work for Napster and it wouldn't work for Google. YouTube is not only doing the conversion of copyrighted material from one format to another (converting them to FLV format), creating illegal derivative works, it's actually *hosting* the files, which even Napster didn't do (it was just the index for P2P files).

Supposedly some people think the fact that they are hosting the actual files makes YouTube more legitimate than Napster because they really are a service provider under the DMCA. Under Napster the service provider was the ISP. YouTube has significant non-infringing uses (including fair use and parody material) which arguably Napster never really did. Additionally, YouTube has always had the little "don't upload copyright stuff" notice which was an issue Grokster had. I'll wager that every clip would have to be individually analyzed to see who uploaded it and why to find out if it qualified for fair use or not.

[Samwise]

That didn't work for Napster and it wouldn't work for Google.

Leaving aside the actual merits of the case, Google has a hell of a lot more money than Napster did.

[naum]

Actually you do download a copy of the video to your machine -- it's sitting there right now in your browser cache. Flash Video is not a "pure" streaming format like, say, ASF. If you want to keep a copy of a YouTube video, or any other FLV/SWF video around, use IE (yes I know, but keep reading) to watch the video and then just drag it out of your Temporary Internet Files folder when it's done loading. Firefox and Opera make it a super pain in the ass to copy things out of their caches which is why I recommend using IE to do this. Of course, you do have to be careful if you are trying to copy a FLV video from a dodgy site when using IE.

There are Firefox add-ons/extensions that will let you easily DL flash movies… …in fact one will add a little animated icon in your toolbar (I don't have one loaded on this work machine, but there a are a bunch) that will permit you to download all the Flash source on a given page. From there, it's a simple utility to convert the .flv into a video file of your choice (or just use the Flash player on your local copy)… …on my Macs, I use iSquint to convert some to H264 for video iPod use…

That said, Viacom is being stupid, and this guy offers up a cogent summary of the matter:

I’ve been reading Viacom’s boneheaded $1 billion complaint against YouTube. 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. They are trying to spread stupid. From the complaint, notice what they’re really complaining about is their fans.

Actually, I think youTube is still a loss leader for google. Most of its traffic and a big source of how it eclipsed to widespread popularity is the easy ability to embed video in your own page. I would wager that most bandwidth devoted to offering up the video is embeds in other peoples pages. And that's what makes youTube so ubiquitous.

Mark Cuban has subpeano-ed Google,  though he says he's not interested in suing, just proving his assertion that they are not a "hosting company" they define themselves as…

Dinosaurs still asserting their reign… …just like the farmer that sued the government to stop airplanes from flying over his land… …unfortunately, these dinosaurs are armed with mega-lawyer teams and won't be easily thwarted in their quest to turn back the clock…

[Trippy]

That didn't work for Napster and it wouldn't work for Google. YouTube is not only doing the conversion of copyrighted material from one format to another (converting them to FLV format), creating illegal derivative works, it's actually *hosting* the files, which even Napster didn't do (it was just the index for P2P files).

Supposedly some people think the fact that they are hosting the actual files makes YouTube more legitimate than Napster because they really are a service provider under the DMCA. Under Napster the service provider was the ISP. YouTube has significant non-infringing uses (including fair use and parody material) which arguably Napster never really did. Additionally, YouTube has always had the little "don't upload copyright stuff" notice which was an issue Grokster had. I'll wager that every clip would have to be individually analyzed to see who uploaded it and why to find out if it qualified for fair use or not.

    ``(a) Digital Network Communications.--A service provider shall not
be liable for monetary relief, or except as provided in subsection (i)
for injunctive or other equitable relief, for infringement for the
provider's transmitting, routing, or providing connections for,
material through a system or network controlled or operated by or for
the service provider, or the intermediate and transient storage of such
material in the course of such transmitting, routing or providing
connections, if--
            ``(1) it was initiated by or at the direction of a person
        other than the service provider;
            ``(2) it is carried out through an automatic technical
        process without selection of such material by the service
        provider;
            ``(3) the service provider does not select the recipients
        of such material except as an automatic response to the request
        of another;
            ``(4) no such copy of such material made by the service
        provider is maintained on the system or network in a manner
        ordinarily accessible to anyone other than anticipated
        recipients, and no such copy is maintained on the system or
        network in a manner ordinarily accessible to the anticipated
        recipients for a longer period than is reasonably necessary for
        the communication; and
            ``(5) the material is transmitted without modification to
        its content.

Google is not simply "transmitting" the data, they are converting it from one format to another creating a derivative work. By converting the videos into a more compact format they are in effect facilitating the propagation of possibly copyrighted material without permission. They can not possibly claim to be an ISP where they are simply passing bits around.

    ``(c) Information Stored on Service Providers.--
            ``(1) In general.--A service provider shall not be liable
        for monetary relief, or except as provided in subsection (i)
        for injunctive or other equitable relief, for infringement for
        the storage at the direction of a user of material that resides
        on a system or network controlled or operated by or for the
        service provider, if the service provider--
                    ``(A)(i) does not have actual knowledge that the
                material or activity is infringing,
                    ``(ii) in the absence of such actual knowledge, is
                not aware of facts or circumstances from which
                infringing activity is apparent, or
                    ``(iii) if upon obtaining such knowledge or
                awareness, the service provider acts expeditiously to
                remove or disable access to, the material;
                    ``(B) does not receive a financial benefit directly
                attributable to the infringing activity, where the
                service provider has the right and ability to control
                such activity; and
                    ``(C) in the instance of a 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.

    ``(d) Information Location Tools.--A service provider shall not be
liable for monetary relief, or except as provided in subsection (i) for
injunctive or other equitable relief, for infringement for the provider
referring or linking users to an online location containing infringing
material or activity by using information location tools, including a
directory, index, reference, pointer or hypertext link, if the
provider--
            ``(1) does not have actual knowledge that the material or
        activity is infringing or, in the absence of such actual
        knowledge, is not aware of facts or circumstances from which
        infringing activity is apparent;
            ``(2) does not receive a financial benefit directly
        attributable to the infringing activity, where the service
        provider has the right and ability to control such activity;
        and
            ``(3) responds expeditiously to remove or disable the
        reference or link upon notification of claimed infringement as
        described in subsection (c)(3); provided that for the purposes
        of this paragraph, the element in subsection (c)(3)(A)(iii)
        shall be identification of the reference or link, to material
        or activity claimed to be infringing, that is to be removed or
        access to which is to be disabled, and information reasonably
        sufficient to permit the service provider to locate such
        reference or link.

"the right and ability to control such activity" is analogous to what got Napster into trouble. The courts ordered Napster to filter out the infringing tracks (with lists provided by the music companies) and basically threw up their hands and said "we give up". Google provides indexed pages of all the videos uploaded and most importantly they receive financial benefit from the infringing activity. This is different than, say, a blogging service where the user has to create the pages and links to let people access the content they've uploaded. A blogging service doesn't control what pages and links people create. YouTube can control what videos are available for download cause they build those pages. Sure it's an automated procedure (right now) but that software is under the control of YouTube.

[CmdrSlack]

See, all of this "finanacial loss" implies that people would have watched Viacom stuff in some capacity and their viewing would have made Viacom money.

No, it doesn't. Many, many people do not buy stuff based on advertisements. Many do, yes. But I imagine the crossover to the web-savvy pirating Youtube crowd isn't very high.

Doesn't matter.  YouTube's best defense is that they're a service provider within the definition of the DMCA -- they cannot be expected to police what those wacky users do.

That didn't work for Napster and it wouldn't work for Google. YouTube is not only doing the conversion of copyrighted material from one format to another (converting them to FLV format), creating illegal derivative works, it's actually *hosting* the files, which even Napster didn't do (it was just the index for P2P files).

I said it was their "best" defense, not that it was a winner.  ;)

[naum]

Hey, here is the Firefox extension I have installed on my home box(es) to extract Flash video (and any other such media…).

See how much I love you all… …to actually remember and in a half inebriated state come back and post a link… …:)

[Soln]

could it be I'm wrong?

Mark Cuban, FWIW

My hope is that this lawsuit is not a negotiating ploy. I dont think it is. Why ? Because there is no downside to Viacom to run this one out to the end. If they win the suit, they make their Billion Dollars, which given this lawsuit could take years, could grow to 10s of Billions in damages if Gootube doesn't take any action to stop the ongoing infringing uploaders. If Viacom loses, they lose legal fees of course, but Google still has to negotiate to get their content. The only real hassle is that Viacom must continue to send takedown notices. Thats such an easy choice, 10mm in legal fees vs the potential for BILLIONS and BILLIONS of dollars. Its so easy, that I expect many suits to follow this one.Gootube has no earthly idea who their users are. They make no effort to find out. So if someone wants to repetitively upload movies, shows, whatever, they just jump from user id to user id.

I think that last point is at least noteworthy -- there is no user facing data (at least) on who is uploading what consistently, it's all based on the rating of the clip itself, and the 12 other versions of it.