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A Law Professor's Opinion of Viacom vs YouTube

Zonk posted about 7 years ago | from the winning-isn't-everything dept.

The Internet 155

troll -1 writes "Lawrence Lessig, a well-known law professor at Stanford, has an op-ed in the NY Times entitled Make Way for Copyright Chaos which references the Viacom vs YouTube case. What's interesting about this article is that it gives some historical perspective on copyright law and the courts. Up until Grokster, Lessig says the attitude of the courts was, 'if you don't like how new technologies affect copyright, take your problem to Congress.' But in the Grokster case the court seemed to rule against the technology itself, cutting Congress out of the picture. He also explains that Viacom is essentially asking the Court to rule against the safe harbor provision of Title II of the DMCA which should protect YouTube and others against liability so long as they make reasonable steps to take down infringing content at the request of the copyright holder. Lessig doesn't give us any insight into who's going to win but he does conclude that 'conservatives on the Supreme Court have long warned' about the dynamic of going against Congress when it comes to copyright."

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155 comments

Jews? (-1, Offtopic)

Anonymous Coward | about 7 years ago | (#18391795)

Or Juice?

The world may never know. But at least the world will know that this was the FIRST POST. I would like to take the time to thank my mother for getting me this far.
 
--CmpE from GATech

Re:Jews? (-1, Flamebait)

Anonymous Coward | about 7 years ago | (#18391993)

Make the Jews into juice!

Re:Jews? (0)

Anonymous Coward | about 7 years ago | (#18392169)

Make sure the jew-juice is concentrated. If it's not we'd have to send it to a camp.

Re:Jews? (0)

Anonymous Coward | about 7 years ago | (#18392663)

Lame
 
--GATech undergrad

Anlogous to Slashdot vs Scientologists (5, Insightful)

CrazyJim1 (809850) | about 7 years ago | (#18391815)

Is Slashdot responsible for it's user's material? No.
Should YouTube be responsible for it's user's material? Viacom says yes. Viacom doesn't want to get into the buisness of tracking down users individually.

Now is Google supposed to rat out offenders minimally? Or is Google supposed to become the user generated content police themselves? If they are, it sets a bad prescedent for all text forums online in that the moderator will have to make sure the posters aren't posting something copywrighted. I won't get into draconian measures an oppressive government has on free speech, even though it does tie in.

Re:Anlogous to Slashdot vs Scientologists (2, Insightful)

foodogfoo (1077173) | about 7 years ago | (#18391841)

Very true ... I see this debate almost everyday about users in various forums cut and pasting articles and sometimes the whole article. Too many shades of gray to figure it all out.

Re:Anlogous to Slashdot vs Scientologists (1)

russ1337 (938915) | about 7 years ago | (#18393977)

I'd like to take this one step further.

I'd like to see people cut and paste full articles and copyrighted works into comment sections onto Viacom's (or their subsidiaries) pages. They are then guilty of what they are blaming youtube for.

Perhaps excerpts of code that SCO or Microsoft are laying claim to, in an effort to draw them all in to a war of attrition. Of course the poster of such content might want to do it as "anonymous coward"

ATTN: SWITCHEURS! (-1, Offtopic)

Anonymous Coward | about 7 years ago | (#18391879)

If you don't know what Cmd-Shift-1 and Cmd-Shift-2 are for, GTFO.
If you think Firefox is a decent Mac application, GTFO.
If you're still looking for the "maximize" button, GTFO.
If you don't know Clarus from Carl Sagan, GTFO.

Bandwagon jumpers are not welcome among real Mac users [atspace.com]. Keep your filthy PC fingers to yourself.

WIth the money I saved going PC over Mac... (0, Offtopic)

FatSean (18753) | about 7 years ago | (#18394111)

...I bought a set of camshafts for my Volkswagen!

Re:Anlogous to Slashdot vs Scientologists (0)

Hal_Porter (817932) | about 7 years ago | (#18391929)

Make Way for Copyright Chaos
By LAWRENCE LESSIG

Berlin

LAST week, Viacom asked a federal court to order the video-sharing service YouTube to pay it more than $1 billion in damages for some 150,000 videos that Viacom claims it owns and YouTube users have shared. YouTube, the complaint alleges, has harnessed technology to willfully infringe copyrights on a huge scale, threatening not just Viacom, but the economic underpinnings of one of the most important sectors of the United States economy.

Yet as federal courts get started on this multiyear litigation about the legality of a business model, we should not forget one prominent actor in this drama largely responsible for the eagerness with which business disputes get thrown to the courts: the Supreme Court.

For most of the history of copyright law, it was Congress that was at the center of copyright policy making. As the Supreme Court explained in its 1984 Sony Betamax decision, the Constitution makes plain that it is Congress that has been assigned the task of defining the scope of the limited monopoly, or copyright. It has thus been Congress that has fashioned the new rules that new technology made necessary. The court explained that sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. In the view of the court in Sony, if you dont like how new technologies affect copyright, take your problem to Congress.

The court reaffirmed this principle of deference in 2003, even when the question at stake was a constitutional challenge to Congresss extension of copyright by 20 years. Challenges are evaluated against the backdrop of Congresss previous exercises of its authority under the Copyright Clause of the Constitution, it wrote. Congresss practice not simply the Constitutions text, or its original understanding thus determined the Constitutions meaning.

These cases together signaled a very strong and sensible policy: The complex balance of interests within any copyright statute are best struck by Congress.

But 20 months ago, the Supreme Court reversed this wise policy of deference. Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

Viacom has now accepted this invitation from the Supreme Court. The core of its case centers on the safe harbor provision of the 1998 Digital Millennium Copyright Act. The provision, a compromise among a wide range of interests, was intended to protect copyright owners while making it possible for Internet businesses to avoid crippling copyright liability. As applied to YouTube, the provision immunizes the company from liability for material posted by its users, so long as it takes steps to remove infringing material soon after it is notified by the copyright owner.

The content industry was a big supporter of the Digital Millennium Copyright Act in 1998. Viacom is apparently less of a supporter today. It complains that YouTube has not done enough to take reasonable precautions to deter the rampant infringement on its site. Instead, the Viacom argument goes, YouTube has shifted the burden of monitoring that infringement onto the victim of that infringement namely, Viacom.

But it wasnt YouTube that engineered this shift. It was the Digital Millennium Copyright Act. As the statute plainly states, a provider (like YouTube) need not monitor its service or affirmatively seek facts indicating infringing activity. That burden, instead, rests on the copyright owner. In exchange, the law gives the copyright owner the benefit of an expedited procedure to identify and remove infringing material from a Web site. The provision was thus a deal, created to balance conflicting interests in light of the technology of the time.

Whether or not that balance made sense in 1998, Viacom believes it no longer makes sense today. Long ago, Justice Hugo Black argued that it was not up to the Supreme Court to keep the Constitution in tune with the times. And it is here that the cupidity of the court begins to matter. For by setting the precedent that the court is as entitled to keep the Copyright Act in tune with the times as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacoms liking. But Viacom recognizes theres no political support for the change it wants. It thus turns to a policy maker that doesnt need political support the Supreme Court.

The conservatives on the Supreme Court have long warned about just this dynamic. And while I remain a skeptic about deferring to Congress on constitutional matters, this case is a powerful lesson about the costs of judicial policy making in an area as complex as copyright. The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved.

No doubt the justices are clever, maybe even more clever than Congress. But however clever, its hard to believe that their input is worth the millions in economic value that will be wasted long before they announce their decision.

Re:Anlogous to Slashdot vs Scientologists (4, Insightful)

OECD (639690) | about 7 years ago | (#18391979)

Viacom doesn't want to get into the buisness of tracking down users individually.

And that's exactly what this is all about. They're shoveling against the tide. They won the right to have the premptive say in what is or is not a copyright violation, but belatedly realized that it's a hell of a lot of work (ironic, since it actually mirrors the "opt-in" provision of all earlier copyright laws). Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

Re:Anlogous to Slashdot vs Scientologists (5, Insightful)

TubeSteak (669689) | about 7 years ago | (#18392305)

Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.
While Viacom (IMO) is on the wrong side of the law, Google/YouTube may have potentially created a problem when they instituted filtering for media companies that are willing to make a licensing agreement.

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

Viacom is going to make the argument that since YouTube has it, they should be forced to apply it on Viacom's behalf.

Re:Anlogous to Slashdot vs Scientologists (4, Informative)

sumdumass (711423) | about 7 years ago | (#18392535)

No, Google and Youtube doesn't have the ability to screen copywriten works. And here is why.

I give you and only you the permision to repost anything I have writen on slashdot and hold an automatic copywrite over. How is anyone supposed to know you have permision as aposed to someone else not having permision? Currenty, the person who can give permision has to say "hey, you don't have my permision" then goto the appropriate chanels to get the content removed if and when the user doesn't.

Now suppose as part of the user agreement to Youtube, It says you post only what you have copywrite to or permision to use from the copyholder. How are they going to verify the copyright is theirs or that the user has permision to use it? They need to contact the copyright holder. But the copyright holder isn't always clear when the posting consists of a few clips of some obscure show or scenes from some show that doesn't readily make it obvious what the show is. Are they now supposed to have a team of people that reviews every show, movie, song, book, whatever else that can be copywriten in order to scan ever file uploaded in order to see if it is someone elses and how to contact them to verify someone has permision?

It is the copy owners job to determine if their work is being used against their rights acording to the right given by the copyright. It is there job to give notice and request it stop. Google having some op in service is a way for the copy owner to let google/youtube know who does and who doesn't have permision to use a certain piece of copywriten work outside of someone saying they have the right to do so.

Re:Anlogous to Slashdot vs Scientologists (1)

kripkenstein (913150) | about 7 years ago | (#18392707)

YouTube has the technological capability to minimize infringement, something that wasn't feasible in 1998...

They always had the capability. They could have, in 1998, made posting a video have to pass a 'moderation' step (performed by human beings).

Yes, such a set would be costly, and yes, it would be prone to error - but so is their current technological solution (perhaps less costly, but still - not cheap in any way!).

Re:Anlogous to Slashdot vs Scientologists (1)

91degrees (207121) | about 7 years ago | (#18392973)

Viacom underestimated just how easy it would become to violate copyright. And possibly how popular it would be to do so.

If I posted a video to my website in 1998, this would have been a rare occurance. I'd have needed a rare video digitiser, heaps of hard disk, and plenty of processing time to convert it into an MPEG. The copyright holder might see it and could examine it, check that it was the video they were after. Then they conveniently send a brief note to the ISP, who would take it down, and provide information about the infringer. They might get a few of these a week. Community content wasn't exactly a big thing back then.

Re:Anlogous to Slashdot vs Scientologists (1)

that this is not und (1026860) | about 7 years ago | (#18393865)

Community content wasn't exactly a big thing back then.

Define this community. I can see the scenario that communities of creative people will congregate and share amongst themselves their creative output.

However, I can also see bands of pirates, who all contribute 'swag,' or stolen property, to their 'community commons.'

Please, oh please, don't go all 'analytical' now on what constitutes 'property.' The law stands the way it does at the moment, and creative people who have 'contributed' their work for our benefit assumed those laws would hold before they contributed. Take things too far, and everybody will just revert to putting stones in the soup kettle.

Re:Anlogous to Slashdot vs Scientologists (0)

Anonymous Coward | about 7 years ago | (#18394137)

Would that really be such a bad thing?

Re:Anlogous to Slashdot vs Scientologists (1)

91degrees (207121) | about 7 years ago | (#18394417)

Interesting points. Not really related to the points I was trying to make but anyway...

Define this community. I can see the scenario that communities of creative people will congregate and share amongst themselves their creative output.

In this case - Geeks with video cameras, geeks with video capture cards, those who create and want to be heard, and those who don't create but like to share. Some people approve of the latter type (those with another source of income who just make movies for fun, or those who make tangible profits indirectly), others don't.

However, I can also see bands of pirates, who all contribute 'swag,' or stolen property, to their 'community commons.'

I don't see it that way. Pirates (as in blackbeard) are in it for personal gain. They may see a benefit to pooling resources and rewards but that's stil because they do better from it. Youtube pirates are truly trying to be altruistic. They're just naive. They want to share the cool videos they've seen. They don't consider the problems this may cause the copyright holder.

Re:Anlogous to Slashdot vs Scientologists (0)

Anonymous Coward | about 7 years ago | (#18393063)

Now they're trying to outsource that job to content providers, even ones that comply with their DMCA notices.

It's called "turning the fuckups in my business model into externalities".

It's funny. Laugh. (2, Interesting)

Short Circuit (52384) | about 7 years ago | (#18392487)

As someone else pointed out, pasting text articles into forum articles is related to the kind of copyright violation issue Viacom is suing over.

So someone posting the comment of the article in the Slashdot discussion, considering the article isn't slashdotted, is, well, funny. But it illustrates that Slashdot is subject to the same types of copyright violation.

IIRC, CmdrTaco and friends already had to deal with it once before, with the Scientologists. (Though that wasn't a copypaste of a linked article...)

Re:Anlogous to Slashdot vs Scientologists (1)

WgT2 (591074) | about 7 years ago | (#18393597)

But 20 months ago, the Supreme Court reversed this wise policy of deference.

Awwwww... and who says activist judges don't legislate from the bench?

Re:Anlogous to Slashdot vs Scientologists (2, Insightful)

squiggleslash (241428) | about 7 years ago | (#18394011)

Not really sure where he gets off on the conservatives vs justices thing above, because the decision in the Betamax ruling in 1984 was essentially made by the so-called liberals on the supreme court, and opposed by people like Reinquest. Betamax, indeed, was an expansion of fair-use, which isn't something Congress had explicitly ruled upon in any way relevant to the Betamax case.

Be that as it may, what, exactly, is the evidence that the court is going to rule against YouTube even if it shows it did obey the safe harbor provisions of the DMCA? I'd say exactly none. The Grokster ruling is completely irrelevant to this case, as the safe harbor rules were something Grokster et al went out of their way to avoid making even practical on their networks. Grokster's case was harmed by the central fact that they were relying upon piracy to make their networks commercially viable, as the numerous memos and other documentation entered into evidence made abundantly clear.

YouTube is an entirely different case, and unless Viacom can show that YouTube hasn't obeyed the DMCA safe-harbor provisions, even if they're able to show YouTube has acted in bad faith they're unlikely to win this. I find it highly unlikely though they'll be able to find anything about YouTube close to the overwhelming evidence that was available to show Grokster was acting in bad faith: YouTube's model has always been based upon people uploading their own videos, while copyright infringement is common it doesn't really make up the bulk of what's there and why people go to YouTube.

If the law is followed, and there's no reason to believe it will not be in this case, and if YouTube has been obeying the DMCA, I'm not seeing why they'd lose, and I'm certainly not seeing why a court would write new law just to damn them when the intent of Congress is clear, and when there's no evidence YouTube wants their network used for infringing material.

Pawn Shop versus Fence. (3, Insightful)

goombah99 (560566) | about 7 years ago | (#18392239)

When does a Pawn Shop or Consignment Shop that accepts stolen goods become a fencing operation. Presumably it has to do with if the pawn shop owner knew or had reason to suspect the items were stolen. But of course we know that's not good enough. We must also expect the pawnshop owner to make a good faith effort to determine if the goods were stolen. Otherwise we end up with a bunch of Sargent Shultz, winking de facto fences. (I know nothing!). Yet we also can't expect the pawnshop or consignment owners to work so hard at establishing the provenance or they can't exist as a bussiness.

Now scale this up to the point where the consignement owner has both slashed his margins to the bone, and is accepting and reselling so much merchandise he literally hasn't the staff or time to check. Then you have E-bay.

E-bay is a consignment shop that is not really meeting the good faith effort that is the industry standard for pawnshops.

One the one hand, who gave them a free pass on making an effort? On the other by having a huge customer base and low margins, they in some ways have created a new industry. They are arbitraging the junk drawers and attics of america. Putting all that goods back into circulation effectively increases the wealth of the nation, and also means less waste of resources to remanufacture items. It's giving people who could not afford goods, those goods at lower costs, and it's also encouraging others to buy new goods they might hesitate to buy because they know they can cash them out later.

So arguably it's good for the nation.

How to we resolve this dichotomy: promotes illegal activity and is below community standards for good faith effort to prevent that activity versus promotion of healthy commerce at a mega scale.

Hmmmm. Hell if I know. A freind of mine had his skis stolen. One assumes they probably went on e-bay. He also bought a pair of skis to replace them on e-bay at a below wholesale price. Coincidence? Ebay has lots of legit merchandise but it's a good place to sell stolen stuff too.

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

Re:Pawn Shop versus Fence. (3, Insightful)

mike2R (721965) | about 7 years ago | (#18392891)

But this viacom thing is the same thing all over again except this time it's intellectual rather than physical property.

The difference is that the DMCA makes it crystal clear that YouTube is meeting it's obligations as long as it takes down infringing content when the copyright owner points it out.

This was a deliberate decision made by congress, aimed at allowing businesses like YouTube to have a sane set of rules to follow. If Viacom don't like it they should convince congress to change it's mind. They don't think they can so they're asking the courts to "interprate" the law until it says what they want.

Your reasoning is perfectly valid, but it isn't for the courts to decide since the legislature have passed a law on exactly this issue.

Re:Anlogous to Slashdot vs Scientologists (1)

Antique Geekmeister (740220) | about 7 years ago | (#18393093)

Google took on the responsibility of censoring content for the Chinese government (http://www.breitbart.com/article.php?id=D8FBCF686 &show_article=1, and numerous other articles on it). The question is thus not whether Google can censor: the question is *how much* they'll do it.

Google gave up the righteous stance of being unwilling to censor when they went along with political content censorship: the decision will haunt them in this and similar situations, where the content doesn't have the protection of international treaties against such censorship but often falls under international copyright laws.

Re:Anlogous to Slashdot vs Scientologists (0)

Anonymous Coward | about 7 years ago | (#18393773)

Is Slashdot responsible for it's user's material? No.

Sorry, that should have been its users'. I guess I should have paid more attention in grade school.

nga plz Re:Anlogous to Slashdot vs Scientologists (1)

placebo420 (159766) | about 7 years ago | (#18393823)

As much as I agree with the ends you're trying to achieve, we've got to get beyond substantitively fraudulent analogies if we're going to win in the long-term.

Your analogy is consistent enough to hold water at most marketing-based office conversations, but at a low-level, we both know it breaks down: However juicy the meta-comparison may seem, there is a world of difference between user-generated ascii content and the latest episode of Heros; If we pretend not to see this, the Real Decisionmakers(tm) will see us as hippies and thieves and we'll lose this battle too.

Digital Rights Act (5, Interesting)

geekbeater (967717) | about 7 years ago | (#18391855)

As the opinion piece clearly points out, a deal was struck by law in 1998...now one of those parties doesn't want to have to hold up its end of the deal. (Viacom self monitoring of content providers) It is always frightening when the courts make law, of course it is rightly obvious that is not their intended responsibility to do so...but the oversight of lawmakers has been usurped by their fear of not being re-elected...no one in congress wishes to show leadership...i.e. "rock the boat" as it were , heaven forbid if they can't stay on the DC party circuit.

Re:Digital Rights Act (1)

rm999 (775449) | about 7 years ago | (#18392961)

It's more complicated than that. From the economist:

"The legal situation is ambiguous. At issue is America's Digital Millennium Copyright Act, which became law in 1998, when Google, founded that year, was unknown and YouTube did not exist. It includes a "safe-harbour" provision for anybody who removes copyrighted content as soon as the owner requests it.

YouTube has been doing that--most notably a month ago, when Viacom demanded that 100,000 clips be taken down. But the safe-harbour clause applies only as long as a site does not gain financially from infringement."

Does youtube make any sort of profit off its videos?

Trias politica (1)

remmelt (837671) | about 7 years ago | (#18393447)

You better be thankful that the courts do "make law" as you describe it. Laws passed down by the government can never take into account all the circumstances of your specific case. They hardly ever see how the law may be used or avoided, even though the law making process takes so long.
All laws are judged in a public court, and mostly impartial judges are there to see if your case fits the law in question or not. This is the way the trias politica works, and it works well. What's sometimes even more important than the law, is the case precedence, which is where the law gets worked out to real world examples.

In short, lawmakers make the law, judges tell you if it applies to your case. This is good.

(I won't go into the motives of lawmakers who get funded by certain large corporations, etc, etc)

Re:Trias politica (1)

geekbeater (967717) | about 7 years ago | (#18393895)

"In short, lawmakers make the law, judges tell you if it applies to your case. This is good."

The above is correct and right, what I'm referring to is the fabrication of legal application out of whole cloth, i.e. the right to privacy allows you to kill a fetus??? Whatever side of the issue you are on in that...that is just terrible jurisprudence. The fact of the matter is the courts are woefully unprepared for technology in the court room, judges and juries for the most part (lawyers too) are completely ignorant of the rapidly changing landscape of the times we are in. My fear is the damage that the courts can do to stifle this forward momentum for the sake of "fairness".

Re:Trias politica (1)

cpt kangarooski (3773) | about 7 years ago | (#18394251)

i.e. the right to privacy allows you to kill a fetus??? Whatever side of the issue you are on in that...that is just terrible jurisprudence.

Not especially. The right of privacy allows you to make medical decisions concerning your own body. That's one of them. The only thing that makes it particularly different from deciding whether to have a tooth removed is that after a certain point the fetus might be a premature but viable infant, permitting the mother to stop being pregnant without having it die. With improvements in technology, someday we'll probably be able to remove a fetus from a woman long before viability and continue gestating it artificially. Privacy has to do with a decision as to whether or not to remain pregnant. The death of the fetus is just an unfortunate side effect; if it can be avoided without forcing the woman to continue to be pregnant, then that's what the courts say ought to happen. It's not terrible jurisprudence by any means.

Wrong arguments.... (5, Insightful)

zappepcs (820751) | about 7 years ago | (#18391861)

While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

I say that because Google/YouTube is one of the few companies that actually wants to provide such services. They have the right business model to do so, and they are making stars out of ordinary people. There is some evidence to show that YouTube sites et al will replace network television in short order if network television continues to suck and user generated content continues to get better. Mashups will make the 45,000+ channels of on-demand YouTube content even more coherent, and thus more attractive to the average viewer.

Back to the question on the table. The article clearly shows that what Viacom is pissed off about is that they have to look for the infringement on their own, or PAY YouTube to do so. Personally, I think Viacom is just whining because they are being hung with their own rope!

IMO, it would benefit the industry, the country, the world if YouTube wins. I say this because on-demand content is the future, and not the kind where you are paying DVD rental costs for each view. The on-demand video industry will replace television eventually, but it cannot grow to that size if the Viacom's of the world are allowed to destroy it before it gets off the launching pad.

Re:Wrong arguments.... (-1, Flamebait)

Anonymous Coward | about 7 years ago | (#18391997)

If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

Who gave you the right to speak for all? I do not want what you think I want.

Re:Wrong arguments.... (1)

joshier (957448) | about 7 years ago | (#18392017)

I agree..

I think the time period we are in is in the midst of a businessman's mind of 'f*** traditional.. have to stay with this otherwise we loose profits...'
Of course, even a school kid could tell you that this is the future.. I mean, I thought it was obvious when I first got the internet.

Anyway, I hope they see the light, everyone can be a winner if they use this system (on-demand video).

Re:Wrong arguments.... (1)

Telvin_3d (855514) | about 7 years ago | (#18392513)

The major issue with what you are saying is that YouTube is a distribution model, not a production model. Once the TV stations are gone, who pays for the shows to get made? Who foots the bill for $100,000+ episodes? If YouTube wins, it may be a good thing for free speach, but it might also be the end of one of the most powerful sources of entertainment ever created.

Re:Wrong arguments.... (2, Insightful)

heinousjay (683506) | about 7 years ago | (#18392533)

People will do it for free! And it'll be better than the commercial crap everybody hates but downloads anyway, because it'll be done only with pure motivation! All those video blogs of people picking their nose while discussing the latest developments in their crusade against disease-free personal areas will provide our entertainment.

Re:Wrong arguments.... (1)

sumdumass (711423) | about 7 years ago | (#18392555)

Maybe this is just like the pixies in the buble gum forest. If you don't believe hard enough you won't see them.

Re:Wrong arguments.... (1)

Telvin_3d (855514) | about 7 years ago | (#18392785)

As someone who has been involved in small scale DIY productions, I have to thank you. I have not laughed this hard in a while. Your sarcasm is truly breathtaking. ... it was sarcasm, wasn't it?

Re:Wrong arguments.... (1)

OECD (639690) | about 7 years ago | (#18394057)

People will do it for free! And it'll be better than the commercial crap everybody hates but downloads anyway, because it'll be done only with pure motivation!

It's already available:

All those video blogs of people picking their nose while discussing the latest developments in their crusade against disease-free personal areas will provide our entertainment.

You can find that stuff too.

Re:Wrong arguments.... (1)

zappepcs (820751) | about 7 years ago | (#18392581)

Here is how I see it happening: First, aspiring film makers and video stars will work to get 'discovered' via their work on YouTube. Second, some shows that 'production model groups' won't put on TV will get aired via YouTube (first as an experiment, then as a shared revenue model with YouTube). Third, more popular 'free agent' content makers will get corporate sponsorship, just like you see for sport figures etc. Fourth, syndication mash-ups will garner sponsorships for presenting channeled content from YouTube and others by becoming popular sites to use for viewing all the available content. This system of free-market sponsorship will raise money for those that need it to make more content.

The difference between the current model and the future? The money won't be falling into the pockets of a just a few people, it will be spread out among the people making the content. Some of them might even get big enough to put out multimillion dollar movies, but it is more likely that by the time that might happen Hollywood will have pulled their collective heads out and bought up a few start-ups or created a few of their own.

All of the Internet based models of content distribution simply redistribute the wealth. They don't necessarily create more wealth, or less, just distribute it among more people.

Now, you have to be discovered somehow... in the YouTube future you won't need that, just put your stuff out there and if people like it, you'll get a reward. I can't think of any better incentive for people to create content that is worth watching.

Re:Wrong arguments.... (1)

Telvin_3d (855514) | about 7 years ago | (#18392769)

All of this is a nice dream, but there are a few issues. First, you are still assuming that TV is going to be around as the cash backbone of the production industry. Going through your four point first paragraph;
1 - Aspiring filmmakers and video stars discovered on YouTube. Discovered by who and for what? If YouTube and direct distribution win over the traditional methods (which is inevitable), who is going to be discovering these people and who what? Yes, millions of people on the internet will happily watch them do their thing, but that is not going to generate the next '24', 'Heroes', 'Lost' or 'Battlestar Galactica'.
2 - "Some shows that 'production model groups' won't put on TV". What TV? The basis of this discussion is the real fear that television production as we know it is not going to be sustainable. You are assuming that whatever happens a large, lucrative TV market will exist. Right now, there is a real (although possibly not realistic) fear that it won't.
3 - Corporate sponsorship will be wonderful for the Reality TV shows and possibly a few others, but that is it. Can you imagine what your favorite drama would be like as presented and bankrolled by Pepsi? I can, and I can tell you now that it would no longer be your favorite drama.
4 - Mash ups of what? What will be being made out of what?

The difference between the current model and the future (as it stands now) is that the money won't be falling into any pockets at all because the people with the big money to make it happen lose all their incentive to invest. And don't kid yourself that the best of the best needs the few people/organizations with the big money to happen. Could you see 'Lord of the Rings' or 'The Departed' or any other movie being made if the director had to convince million people to donate $5 to the cause first?

Internet based distribution distributes the content. That's why it is referred to as a content distribution system. It is, however, famous for NOT being a good wealth distribution system. See the DotCom bust.

Re:Wrong arguments.... (1)

cooldev (204270) | about 7 years ago | (#18392543)

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.

If YouTube is successful and sets a precedent, I hope you are happy with watching reruns for all the stuff created between ~1900-2007, because everything else will likely be created by India and China, with serious DRM protecting their content.

Re:Wrong arguments.... (1)

richie2000 (159732) | about 7 years ago | (#18392867)

What you are forgetting is that the lack of copyright will reduce the incentive for people to create new material.
Here's an offer you can't refuse: Show me one single independent academic paper that conclusively proves this thesis and I will Paypal you $50 USD.

(The reason I can offer you this wager with impunity is because I can link to close to a dozen academic papers, in various languages, proving the opposite. Here's my favourite, in Swedish: http://www.ulfpettersson.se/2006/06/27/upphovsratt en-som-incitament-en-inkomstanalys-av-kreativa-yrk en/ [ulfpettersson.se])

While you Google your life away, ponder this: When the US had a copyright protection spanning a mere 14+14 years, Hollywood created Casablanca. With a life+70 copyright, they brought us Crossover. Besides, Leonardo Da Vinci, Beethoven, and Van Gogh didn't need no copyright at all to create. Real creators don't need incentives, they need restraining.

Re:Wrong arguments.... (0)

Anonymous Coward | about 7 years ago | (#18393255)

Besides, Leonardo Da Vinci, Beethoven, and Van Gogh didn't need no copyright at all to create.

Ah.. you want back to the partly slave like protege/rich benefactor/patron type relationship?

Re:Wrong arguments.... (0)

Anonymous Coward | about 7 years ago | (#18392577)

I'd be a complete vegetable if I could go to my 'channel's' webpage and generate my own playlists, I know it's a pipedream - but what if you could veg out without any commercials too. Maybe that's why they're stalling with the real broadband and net neutrality.

Re:Wrong arguments.... (1)

10101001 10101001 (732688) | about 7 years ago | (#18393643)

While the arguments on the table are whether Viacom right or is YouTube right, but the real question that will be answered by the outcome of this little court battle is: what will video entertainment look like in the coming decade? If Viacom wins, it will look pretty much like it does today. If YouTube wins, it will look like we all want it to look: Video on demand, anywhere, anytime, any content.

I think YouTube is more than that. For the longest time, it has been claimed that while copyright doesn't ensure any sort of quality, it has in large part been responsible for the large quantity of new creative works of the last few centuries. But YouTube shows just the opposite, with a mass of videos, many of questionable quality, but of such vast quantity because, in the end, popularity is more important to many people than an unlikely stream of money.

And you are right, YouTube winning would certainly be a move to video on demand everywhere, and that is in large part due to it being unlikely that film studios will ever provide anywhere near the capacity to show all the movies the possess. As a simple example, imagine if there really *was* video on demand, providing DVD-quality video. Some back-of-the-envelope calculations hint that DVDs, on average, require on the order of a 4Mbps line to stream properly. In perspective, that means a 1Gbps line could provide for upwards of 256 movies at once. While that might seem like a lot, in reality even *if* there was a huge popularity in certain movies, such a collection would hardly support the demands of a small town. On top of that, to provide movies to many small towns would require either excessively wide bandwidth or many caching servers.

But, it's unlikely that even with heavy encryption and supposedly bullet-proof server software that any movie studio would have an extensive amount of their catalog available to every single person in the US, as the risk of cracking their servers as a means to piracy would be too great. This even ignores the issue of actually setting up enough servers today to begin to provide video on demand to such scale (assuming one server per 5,000 people, there would need to be approx. 60,000 such servers for the US; further, with an average catalog of 1,000 movies, one would need on the on the order of a 4TB drive to hold DVD-quality movies (with lower quality, one might be able to bump it down to 2TB); at $200 per TB, this works out to be a optimistic $24 million just for the storage space; laying down fiber to avoid this storage space would likely be more costly, at the moment).

With YouTube, Google isn't as worried about piracy. This is precisely because the majority of the content is *intended* to be distributed for free. So, not surprisingly, Google actually *wants* people to distribute content for them. Google is likely more interested, in the long term, of motivating ISPs to join them in distributing content, which ISPs will probably be motivated to do in their own right to save bandwidth costs. Non-redistributable content is precisely what YouTube doesn't want, as it provides more of a headache to them (via DMCA takedown notices and threats of lawsuits, and how that will dissuade ISPs from doing their own caching) than a help. Is it truly surprising that in the end copyright will do exactly counter to what its intent is?

Ironically (5, Interesting)

eclectro (227083) | about 7 years ago | (#18391871)

Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.

Re:Ironically (3, Insightful)

limecat4eva (1055464) | about 7 years ago | (#18391909)

The lasting legacy of this administration will be conflict and unrest engulfing everything from Istanbul to Islamabad. Bush will be remembered more for his neglect, incompetence, and tolerance of failure than for his appointments to the Supreme Court, which are frankly forgettable in the disastrous broader picture.

Re:Ironically (1)

Hal_Porter (817932) | about 7 years ago | (#18391961)

Yeah, but at least we can still watch Jon Stewart mocking Bush on YouTube. Get some priorities man.

Re:Ironically (1)

VGPowerlord (621254) | about 7 years ago | (#18392877)

Yeah, but at least we can still watch Jon Stewart mocking Bush on YouTube. Get some priorities man.

Not if Viacom keeps asking Youtube to pull them down... particular if Youtube isn't pulling them, as they can then be found liable under the DMCA for not complying with takedown requests in a timely manner.

Re:Ironically (1, Interesting)

Anonymous Coward | about 7 years ago | (#18392101)

I think it's worse than that. He'll be remembered for:

-screwing over their own trading partners (like Canada over soft wood lumber)
-trying to force other countries to go to war without evidence
-for laws like the patriot act
-being a bible thumper (nothing personal against christians - all them overly religious folks scare me) and being borderline oppressive against atheists
-trying to force other countries to change their laws (like pressuring Canada for stricter copyright laws)
-violations of human rights e.g. guantanamo bay
-trying to police the world in general (downright scary for most if not all non-americans)
-record budget deficit
-not really knowing what happened on 9/11 for sure, or what ties were there between al quaeda and iraq (I don't see any)
and lots more stuff like that... This list is virtually endless.

Basically, they've turned a country where I wish I lived into a place I'm not keen on even visiting anymore. The people are great, but the government and laws... Disastrous is quite an understatement. Bush is the only president I've ever been scared of. Kind of a drastic change, because Clinton looked like the type of guy I'd go drink with...

Re:Ironically (0, Redundant)

sumdumass (711423) | about 7 years ago | (#18392641)

Wow, Thats a long list. But I have some questions about it.

"-screwing over their own trading partners (like Canada over soft wood lumber)"
Do you mean when the tarrif that was put in place because canada was subsidising their lumber industry and allowing them to undersell american mills like the chinese and japanese did witht he steal industry durring the previous decade when it colapsed?

"-trying to force other countries to go to war without evidence"
DO you mena the evidence other countries gave us that turned out to be false or inacurate? Or are we talking about the same countries who denied the evidence because the US going into Iraq would mean they would lose out on some secrete but extreamly lucrative oil deals they have made against the UN sanctions?

"-for laws like the patriot act"
well, I don't have any questions about this. Although it's usefulenss can be debated

"-being a bible thumper (nothing personal against christians - all them overly religious folks scare me) and being borderline oppressive against atheists"
Please tell me more about this. I havn't heard this one yet. If your talking about faith based initiatives, lol.. I listened to an interview with someone suing the government about it and when asked she didn't knwo anything about them other then Bush was behind it yet she was the spokes person for the organization who filed the lawsuit.

"-trying to force other countries to change their laws (like pressuring Canada for stricter copyright laws)"
And this is something new? I think it happens in about every administration including ones that aren't in america.

"-violations of human rights e.g. guantanamo bay"
Club gitmo has been overstated, and violations of human rights always comes up but the acusations equate to going into a nightclub in hte middle of winter. Am I mising something?

"-trying to police the world in general (downright scary for most if not all non-americans)"
Well, I don't have any questions about this either. I'm not sure if it is a negetive either.

"-record budget deficit"
Yes, I am pissed about this too. He has increased no discresionary-non-military spending by twice the amount the previous administration had. It never should have happened. Why do you think we waisted all that money on social services and program like drugs for senior citizens?

"-not really knowing what happened on 9/11 for sure, or what ties were there between al quaeda and iraq (I don't see any)"
I don't think there was ties between the two except for the offer of shelter when we went into that other place over there. But we have al qeada in iraq now and bush has always stated that 9/11 changes the way we look at threats, saddom was a threat and we need to deal with him before he tried to dela with us.

"and lots more stuff like that... This list is virtually endless."
Please tell me more. I want a hate filled heart too.

Basically, they've turned a country where I wish I lived into a place I'm not keen on even visiting anymore. The people are great, but the government and laws... Disastrous is quite an understatement. Bush is the only president I've ever been scared of. Kind of a drastic change, because Clinton looked like the type of guy I'd go drink with...
First, You must be young. Second, It sounds like the US is better off with your loss. err the other way around..lol. Sorry about you disapointment :(

Re:Ironically (1)

Antique Geekmeister (740220) | about 7 years ago | (#18392975)

I'm not young. And Iraq is becoming the new "Godwin's Law" in electronic discussions.

But the young'un has good points on every single issue he or she raised. Look again at those issues if you can find time: even the Canada soft timber one was a solid gripe. Complaining about government subsidies in a trade partner is great, but the US lost the court cases on this 3 times and imposed an illegal tariff in direct violation of NAFTA as punishment. Then when the US lost its case in the WTO about tax breaks for corporations being subsidies, then it was "oh, no, those aren't subsidies! Honest!"

Well educated young'un, I think. Despite their rough posting style, I'm glad to see them out here.

Re:Ironically (1)

king-manic (409855) | about 7 years ago | (#18393045)

Do you mean when the tarrif that was put in place because canada was subsidising their lumber industry and allowing them to undersell american mills like the chinese and japanese did witht he steal industry durring the previous decade when it colapsed?

On this particular point you are wrong. WTO ruled there was no subsidy. The difference between the two industries aren't government subsidies but entirely different models. Canadian logging companys pay less to log on crown land then US logging do for a similiar area BUT they are responsible to plant new trees and must pay for ecological surveys. When you calculate it they pay the generally same amount in total. WTO agreed.

Re:Ironically (0)

Anonymous Coward | about 7 years ago | (#18393099)

. "and lots more stuff like that... This list is virtually endless."
Please tell me more. I want a hate filled heart too.

Fuck you in the asshole, you dismissive, sanctimonious son of a bitch.Cocksuckers like you can't refute an argument, so you think it's enough to pull out your pop-psych bullshit as though demeaning the other makes you somehow morally, and therefore intellectually superior.

In closing, you are now authorized to kiss my ass.

Re:Ironically (0)

Anonymous Coward | about 7 years ago | (#18392481)

engulfing everything from Istanbul...
Don't you mean Constantinople?

Re:Ironically (0)

Anonymous Coward | about 7 years ago | (#18394117)

I once had a date with a girl from Constantinople, but we never hooked up. Turned she was waiting in Istanbul.

Re:Ironically (0)

Anonymous Coward | about 7 years ago | (#18392171)

"Rein." The word is "rein."

Why do you say that? (0)

Anonymous Coward | about 7 years ago | (#18392313)

Most of this mess is due to pacts between dems and republicans. In fact, the republicans have pushed this just as much. I would not be surprised to see these new judges back these ppl.

Re:Ironically (0)

vtcodger (957785) | about 7 years ago | (#18393211)

***Many people have roasted GWB for his apparent glaring shortcomings. But I bet his one lasting legacy will be his judicial appointments to the supreme court that may reign in copyright gone amok.***

I think you are assuming that when Lessig says "conservative" he means the same thing as when the news media says "conservative". Not so I strongly suspect. It is important to keep in mind that the Republican Party of today and its leader GWB are NOT political conservatives in any classical sense of the word -- their rhetoric notwithstanding. In fact and practice, they are probably better described as reactionaries or neofascists.

Chief Justice Roberts may in fact be what Lessing would call a judical conservative. Samuel Alito looks to be (yet another) right wing nut case. I would not assume that because these guys were appointed by someone who claims to be a "conservative", they will rule in a judicially conservative manner.

It's not clear to me where the neoconservative perception of reality (which is frequently really, really wierd IMHO) is going to come down in Viacom vs U-Tube. I wouldn't bet on it coinciding with congressional will, common sense, or any other rational critereon.

Do Roberts and Alito have a track record on Copyright? Do you happen to know what it is?

Who didn't see this? (5, Interesting)

shrapnull (780217) | about 7 years ago | (#18391905)

Even before Mark Cuban stated that whomever bought YouTube would become a "marked" company, how many of us genuinely thought that YouTube could succeed with millions of leechers benefiting from loose standards under the guise of "Fair Use" and no income?

Google _had_ to expect this. They probably consulted Lessig _prior_ to purchasing the startup. The thing is, this is the showdown that we all expected. Does 'Fair Use' exist? Are content providers liable for member uploads? How is YouTube above the laws that Napster collapsed under? According to the "big, bad DMCA" the _victim_ has to prosecute, which in this case is Viacom, and by the same standards, they should be forced to go after individual users (uploaders) that are at fault, like the RIAA.

The real issue at hand is that copyright law is in complete disarray today. It has an identity crisis that makes such a risky purchase on Google's part worth pursuing on the off-chance that they can score several million more users and page impressions, while still weathering a lawsuit of this magnitude.

The justices will ultimately determine who the winner/loser is, not Congress. This is a rare stage in history where the "intent" of the law will determine its true meaning and either empower or enslave the people going down one path or the other.

Re:Who didn't see this? (1)

heinousjay (683506) | about 7 years ago | (#18392081)

Empower is a word I can agree with in this context, but enslave? We are talking about entertainment here. Let's not pretend that if we were to lose TV clips on the internet our entire world would suddenly be under the control of some corporate master. Hell, it might mean people would leave the house more often.

Re:Who didn't see this? (1)

Petey_Alchemist (711672) | about 7 years ago | (#18392363)

"The real issue at hand is that copyright law is in complete disarray today"

Tell me about it.

We have extensions left and right. Fair use and the first sale doctrine are slowly disintegrating.

Someone needs to remind Congress and the Courts that the point of the intellectual property system is not to set the terms under which the public may redistribute artistic work, but rather ensure that the artist gets some renumeration.

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

The POINT is the promotion of science and useful arts, secured by the means of exclusive rights. Exclusive rights don't trump public good--and never should have.

Re:Who didn't see this? (1)

VGPowerlord (621254) | about 7 years ago | (#18392905)

I'm surprised you didn't mention that laws are also eroding the "limited time" part of that directive.

Right now, if I were to self-publish a book right now, and I live for another 50 years, that book won't enter public domain until 2127 (2127 is not a typo). If I were to sell it through a publisher, it still wouldn't enter public domain until 2077.

That number will increase the next time Disney... er... I mean Congress entends copyright.

Re:Who didn't see this? (0)

Anonymous Coward | about 7 years ago | (#18392531)

Why would they consult Lessig? He can't predict how the Supreme Court will rule better than anyone else.

And this case could easily go to the SC.

Honestly though, Google and Viacom have been negotiating for months, and this lawsuit is just a maneuver in that negotiation. The chances of it going to court are low.

Re:Who didn't see this? (1)

zootm (850416) | about 7 years ago | (#18393137)

But this isn't even about fair use! Fair use doesn't even protect YouTube here - they do not have a good fair use case for the use of the content. What they do have, though, is a provision in the otherwise-horrid DMCA which says specifically that they are not responsible for the content posted by users, they just need to take it down when asked. That's what's under debate here.

This and the whole filesharing thing... (1)

wile_e_wonka (934864) | about 7 years ago | (#18392035)

...trying to stop these is like trying to stop the Missouri River. Give up. People obviously want this technology; give it to them, and figure out how to make money from it.

Re:This and the whole filesharing thing... (1)

Antique Geekmeister (740220) | about 7 years ago | (#18392949)

Really? Tell that to New Orleans, where they're fairly successfully stopping the Mississippi, and tell it to the Dutch, who've successfully stopped the Atlantic Ocean.

It's amazing how long you can succeed in holding back something "unstoppable". It's not always successful, but people can and do live their entire lives in the areas at risk.

Re:This and the whole filesharing thing... (1)

wile_e_wonka (934864) | about 7 years ago | (#18394333)

Ummm--last I checked the Mississippi still hits the ocean. New orleans may have gotten the river to go around them (though the blockade was unsuccessful at holding back the ocean), but they certainly didn't stop the river.

My analogy holds!

Lawrence Lessig, familiar name? (5, Insightful)

Talennor (612270) | about 7 years ago | (#18392055)

Since when is Lawrence Lessig introduced on Slashdot simply as "a law professor"?

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

Re:Lawrence Lessig, familiar name? (1)

TodMinuit (1026042) | about 7 years ago | (#18392157)

Big in the "Free Culture" movement and writer of the phrase "code is law". Slashdotters should recognize this name.

So they should have introduced him as, "Lawrence Lessig, a bias law professor"?

Re:Lawrence Lessig, familiar name? (2, Insightful)

Bodrius (191265) | about 7 years ago | (#18393647)

No, he should be introduced as "Prof. Lawrence Lessig", and a short explanation of who he is should be in the summary, with some background links for context.

Much like Bruce Schneier is presumed to be a recognized authority in cryptography and security, Lessig is universally recognized as an influential authority on the field: copyright, software and IP in general. Whether he is right or wrong, his opinion most likely will carry more weight in and out of academia than other random law professors.

Mentioning Lessig as "a well-known law professor" loses a lot of context: both the weight of his credentials and influence, and the history of his work and corresponding bias.
While I agree with the original posters that his name on the title will be enough for most Slashdotters, just a couple of background links would let everyone see where he is coming from, and why an op-ed on IP from him has more effect than one by Harriet Miers, for example.

Congress polices constitution; Courts make law (1, Funny)

evought (709897) | about 7 years ago | (#18392061)

Great, so SCOTUS remands Constitutional issues (copyright extension) back to Congress, and then wrests legislative power away from them. Dubya sets up his own judicial system in Gitmo. Soldiers playing cop in Iraq. FBI playing "secret agent" at home. The Patent and Trademark Office weighing in on National Security. WTF? Next thing you know we'll have corporations determining foreign policy.

Re:Congress polices constitution; Courts make law (1)

Taleron (875810) | about 7 years ago | (#18392093)

Next thing you know we'll have corporations determining foreign policy.
Yeah, no kiddi- ohhh, wait...

Re:Congress polices constitution; Courts make law (1)

SleepyHappyDoc (813919) | about 7 years ago | (#18392147)

Next thing you know we'll have corporations determining foreign policy.

They're not already?

Re:Congress polices constitution; Courts make law (0)

Anonymous Coward | about 7 years ago | (#18393127)

Next thing you know we'll have corporations determining foreign policy.

They're not already?

I can recommend a good shop in your area where you can have your sarcasm detector refurbished.

The problem is volume (4, Insightful)

edwardpickman (965122) | about 7 years ago | (#18392195)

Youtube's business model has depended on copyrighted material for roughly half it's content. Their stance is tell us what you don't like and we'll take it down. Well they are effectively asking the copyright holders to police their site. Viacom will have to create an entire department just to police Youtube. Youtube benefits from the traffic while Viacom takes on the expense of tracking down copyrighted content. Let's say I start a TV network based on old TV shows. Half are in public domain and the other half are copyrighted. My policy is is you complain about a specific episode I'll stop broadcasting that episode. It's even worse with Youtube because it's like tens of thousands of TV stations running at the same time and even if they take down the episode some one can post it again minutes later. It's an impossible situation for Viacom. The only option other than fighting it is to let them run content for free. If they do that the advertisers will refuse to pay when large numbers watch commercial free postings. There's already been a drop in commerical revenues. The networks are facing a loosing battle and what it means is eventually little or no new content. In the old days just for primetime the networks would do three hours or more of content with even more non primetime content. Now nearly half of television is paid advertisements and a lot of the rest is reruns. The average for primetime content is less than two hours and dropping and a lot of that is reality TV. Network TV won't survive in the long run. People may not post and file share lesser shows but they will the popular ones and those are the profitable ones due to commercials. Take away the profit and TV goes away. The only other option is going to a BBC system where tax money is used for broadcast TV and the budgets of the average show is pocket change.

Re:The problem is volume (0, Flamebait)

Lehk228 (705449) | about 7 years ago | (#18392335)

you can use shitty analogies all you want, the law is very clear in the DMCA.

while the anticircumvention portions are ill-advised the takedown/counter-takedown / safe harbor system is a solid improvement over carpetbombing with lawyers

Re:The problem is volume (0, Flamebait)

SpacePunk (17960) | about 7 years ago | (#18392433)

It's not the policy of YouTube, it's the policy of Congress. Why do you hate America?

No, the problem is intent (1, Insightful)

Anonymous Coward | about 7 years ago | (#18392865)

YouTube is not effectively asking anyone anything. The DMCA lays out the legal ground work for protecting copywrite. This is the DMCA that google lobbied against, and Viacom lobbied for. If Viacom has changed their mind, they need to change the law. But as Lessig points out, thats not terribly likely at this point.

The TV station analogy is crap. Pure wishful thinking. A TV station has a program manager, they do not rely or even allow "user" content. The BASIS for YouTube (do you not already get it?) is YOU provide the content. The difference is very important. In fact, it's the reason that Youtube still exists.

It's foolish to allow Viacom to leech money from Youtube, either for content "protection" systems or thru forcing monitoring onto YouTube. And lets not forget, they had a chance to share the profits, they didn't want to play by Youtubes rules.

You talk about the end of TV as we know it. You talk about it like thats a bad thing. It's not. An end to the tripe that populates all 500 channels on my satellite is more than worth celebrating. And few if anyone is going to cry about it. One could make a strong argument that the current offerings are actually poisoning the minds of the watchers, but thats another story altogether. And are the advertisers being hurt? First, Who cares? Second, do you rush out and buy everything you see on ads? Any of it? Do you make consumer choices because of ads?

The BBC model is worth investigating, as far as I'm concerned, it works. I watch alot more BBC TV than I watch US TV. Maybe when you don't have a 1m per episode budget, you actually have to focus on good story telling. Who knows.

Let me summarize. Viacom along with the rest of the "content" industry lobbied, bribed and manipulated the united states political machine. They passed a law, the DMCA, that favored the content industry in almost every conceivable way. Then YouTube came along. And because YouTube followed the rules, but became popular anyway it became difficult to find and censor all the content. So then Viacom tried to weasel into the ad revenues. But google wouldn't give them enough of it. So now Viacom is suing. Isn't it clear who is in the "right"? Viacom has chosen to litigate, rather than follow the rules they had a hand in creating. I have about 0 sympathy for them.

That being said, Youtube is doomed eventually, maybe this case, or another. The content industries will win eventually in a limited fashion. That limited fashion is that any commercial service like napster, youtube, or what have you will fail due to litigation costs. Simple as that. Even if they don't actually LOSE the court case, like napster, they will be sued to the ground as often as it takes. That still leaves us with other channels, but those channels will likely never be more than a small portion of the population.

This case is likely unique in that both sides have deep pockets. But Viacom has no choice but to fight to the death. Where as google can and will cut Youtube loose if it becomes too expensive.

YouTube Summer of Art? (3, Insightful)

zotz (3951) | about 7 years ago | (#18393491)

"That being said, Youtube is doomed eventually, maybe this case, or another."

I am not so sure...

YouTube Summer of Art anyone?

Put up some nice prizes in several categories. Contest rules like so:

1. Make and post videos in some category. License must be copyleft.

2. Put all "raw materials" that went into the video up somewhere like the internet archive. (Google could host for free as well I guess.) This is for reuse by all in the next contest that will be held.

3. Winners determined. (How? Most popular on YouTube itself? Some other way?)

4. Winners get a nice budget to make more copyleft videos.

Whatever.

If the "content" industry insists on hamstringing the tech industry, the tech industry might need to fund alternate content. Content that can't be used to hamstring new tech but would rather promote new tech while that same new tech promotes that content.

all the best,

drew

http://www.youtube.com/watch?v=vcaf2ThG7q4 [youtube.com]
UFO seen in skies over Winton!

Re:The problem is volume (2, Insightful)

grmoc (57943) | about 7 years ago | (#18392889)

Yup. Welcome to the internet and the new paradigm.

I have little sympathy-- They want absolute control over the works, for 70 years, despite the obvious fact that this is not what the market wants! The market wants a more dynamic approach to content acquisition. If they'd embraced the technology, instead of fighting it, then they wouldn't have to deal with the consequences of the law which they pushed for.

Instead of content on demand, we have a seeming dearth of good programing, and an increase in the amount of advertisement. One has to wonder if either of these factors have a role to play in the movement of content from the authoratarian control of the network execs to the more facile playground of the 'net.

Keep in mind that a fair bit of what people communicate is expressed in common shared experience, and a chunk of that shared experience is copyrighted content, so of COURSE people are going to want to share that with others if they want to communicate with them!

I keep hearing a lot of sympathizing for the copyright-holders, but am not seeing the real change to their bottom line. What I AM seeing, however, is a lot of fear and uncertainty about the future of the content distribution and control channels that these companies have established. I am also seeing a lot of artificial roadblocks being thrown up in the face of actual innovation. The face of technology has been altered, and convenience sacrificed, and it -appears- to be based on fear instead of fact.

Random interesting points:
Viacom had a gross PROFIT of 4.8 billion dollars in 2005.
Viacom had a gross PROFIT of 5.4 billion dollars in 2006.
Hollywood makes most of its money now from DVD sales, and not necessarily from broadcasting or theater showings.
We pay money for cable TV today. It didn't used to have ads on all the channels.

Re:The problem is volume (1)

Maximalist (949682) | about 7 years ago | (#18393825)

NO. Youtube has depended on copyrighted material for 100% of its content. You forget that everything set down in a tangible medium is automatically copyrighted. This post is no more or less copyrighted than last week's Colbert Reports.

The point of distinction is that Youtube has depended on unlicensed copyrighted materials. For stuff you or I make with our video cameras, we have the power to license it to whomever we want... unless it contains somebody else's copyrighted material, like a song playing in the background, or a TV show on a screen in the frame...

Grokster is in favor of YouTube (4, Interesting)

Petey_Alchemist (711672) | about 7 years ago | (#18392315)

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

Let's look at the holding:

Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirma- tive steps taken to foster infringement, going beyond mere distribu- tion with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the deviceís lawful uses.

This does not apply to YouTube. YouTube, by actively discouraging infringers by being *overzealous* when pursuing alleged infringers (see Chung, Anshe; Crook, Michael), and plasting the site with warnings, and setting annoying upload limits that are shorter than television episodes, is not conducting itself in any manner remotely analogous to Grokster.

Technologically, YouTube is more analogous to the Napster case (centralized database, ability to terminate users). But Napster was never found guilty--it was just found that an injunction could be filed against them, and the legal costs forced bankruptcy.

I do not see Viacom winning this case, and I am surprised Lessig didn't opine similarly.

Re:Grokster is in favor of YouTube (2, Interesting)

julesh (229690) | about 7 years ago | (#18393051)

I believe that if you read Grokster, you will find that the court's rationale is favorable to YouTube.

That's not Lessig's point: his point is that in making the Grokster decision, the court effectively created new liability for an action that wasn't covered by legislation. This is something they've previously shown themselves unwilling to do. If they do the same thing in this case (i.e., create new liability that doesn't originate in legislation but which protects copyright holders more than the legislation does), they could find against YouTube.

Bizarrely, I think he's wrong. Yes, I know he knows more about law than I could ever hope to, but I think his bias is blinding him to a simple fact: the liability in the Grokster case was not new. It was simply combining existing theories of liability in an obvious but previously unused way (kind of like most software patents...). But any finding against YouTube would have to be completely new: it would need to find a way to limit the safe harbor provisions of the DMCA in a way that has never been done before. Going up against a lack of legislation is easy, you can find ways around the edges. A lot of law is like that. Going up against solid legislation that says your case should be thrown out is rather trickier. You have to confront it directly.

Re:Grokster is in favor of YouTube (1)

uolamer (957159) | about 7 years ago | (#18393795)

I fully agree with this. YouTubes main operation is not pirated material and for the points you've stated its setup stops people from uploading a whole tv show, while still removing infringing content already. Grokster model was used for around 99% piracy and not doing anything about it. obviously people are posting clips of tv shows and movies on youtube, but at the same time there is much more legal content, combined with things that might be considered fair use. This reminds me more of the mp3board case, if mp3board was mainly composed of legal uploads..

Lessig (1)

Wazukkithemaster (826055) | about 7 years ago | (#18392317)

http://www.lessig.org/ [lessig.org] he's a cool guy. Doesn't like the state of copyright today. More into the dissemination of information.

Re:Lessig (1)

VGPowerlord (621254) | about 7 years ago | (#18392963)

Indeed. He is also well known for being lead counsel in Eldred v. Ashcroft [eldred.cc]. For those of you who don't know, Eldred v. Ashcroft was an attempt to get the Sonny Bono Copyright Term Extension Act overturned for, among other things, being unconstitutional. The appropriate text from the constitution is thus

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.


Alas, SCOTUS did not agree, which I consider sad. I hope that Lessig brings this up the next time one of Disney's senators/representatives tries to get the next copyright extension bill passed.

Re:Lessig (1)

BruceCage (882117) | about 7 years ago | (#18393075)

He's an excellent speaker too, see this video [google.com] in which he discusses topics such as Network Neutrality (most of the presentation), Free Culture, Copyright and Fair Use at the Rochester Institute of Technology. When answering questions from the audience (and perhaps even earlier on) the Grokster case is also discussed (1:47:00 - 1:52:53).

My view was that any responsibility imposed upon peer-to-peer technology companies should be imposed by congress passing law, rather than courts litigating the matter. The problem with courts litigating the matter is that [...] it's extraordinarily expensive, it's strategic opportunity to shutdown your competitor, and then you have in the end a kind of federal judge [...] who sits down there and figures out whether this technology is allowed or not. That was the problem, it's that congress stepped away from the responsibility and the courts took it up.

Horrible Characterization of Grokster (1)

IanDanforth (753892) | about 7 years ago | (#18392521)

Having sat in on the oral arguments and read the decision I can tell you that the reason the court was unanimous in ruling against Grokster had almost nothing to do with the technology. There was clear evidence that the founders created a business model expressly to allow copyright infringement. It was, in fact, a fairly narrow ruling that did not condemn any underlying technology, but made clear that there was a responsibility of business to respect copyright, and that knowingly enabling piracy for profit would not stand under the law.

Frankly I grow more and more disappointed with Lessig. Ever since he lost the most important copyright case of the century (Disney) I've stopped giving him the free-culture-rockstar status he seems to hold with others.

Vs the people (1)

Dan541 (1032000) | about 7 years ago | (#18392651)

YOuTube seves us all as a global community. Viacom and other companies like them are standing in the way of whats good the the entire Internet this case is to protect one partys intrests at the expense of the entire world (That has net access) for now its confined to youtube but how long in the future will it be until they are attacking all Websites that allow usergenerated content?

Mark Cuban has one very persuasive point... (1)

Siguy (634325) | about 7 years ago | (#18392977)

He wrote something on his blog that stuck with me. Basically he asked, how is it that Google has no way to police and filter copyrighted content from getting onto their site, yet they somehow miraculously always manage to keep all nudity and pornography off the system? Youtube may have plenty of teenage girls gyrating and dancing to music from the 80s, but you'll never see anything you couldn't see on basic cable. How is it that with hundreds of thousands of videos being posted, no pornography ever makes it through? The answer is obvious. They pay people and employ filters to keep such content out. The point of course is that this means they can filter out copyrighted content and even have a system in place for it, yet they don't do it because they know that's the backbone of the site. I think Google/Youtube's protection under safe harbor might not hold up because they're basically encouraging and making no effort to prevent all that copyrighted material.

Re:Mark Cuban has one very persuasive point... (2, Insightful)

Antique Geekmeister (740220) | about 7 years ago | (#18392995)

No, I'm afraid not. It's easy to tell on even a casual glance whether a video has nudity or pornography. It's quite awkward to search for copyright: verifying the copyrights alone is a job for a seriously large legal department, especially with "fair use" laws or policies.

Oblig. Penny Arcade link (1)

Accipitradea (826191) | about 7 years ago | (#18393171)

No, I'm afraid not. It's easy to tell on even a casual glance whether a video has nudity or pornography. It's quite awkward to search for copyright: verifying the copyrights alone is a job for a seriously large legal department, especially with "fair use" laws or policies.
http://www.penny-arcade.com/comic/2004/10/29 [penny-arcade.com]

Re:Mark Cuban has one very persuasive point... (3, Informative)

Siguy (634325) | about 7 years ago | (#18393217)

Your argument would make sense if youtube just had obscure and unknown copyrighted clips showing up. If it were just random BBC shows no one has heard of. But when episodes of South Park, the Simpsons, Family Guy, etc etc show up, no, you do not need a set of lawyers to figure out what's going. And I'm not even talking about video mashups and parodies and other gray areas. The fact is that Youtube makes no effort to block completely obvious copyright infringement when they already clearly have the capability to do so based on the porn precedent. Now if they stopped allowing full episodes of shows and movies to linger for weeks and the only things showing up were 2 minute clips or parodies or obscure shows, then I'd agree with you. But it's not like youtube users hide what they're doing. Most of the time they just link three ten minute clips together and label them "South Park 403 Part 1" "...Part 2" and so on.

If Viacom is Smart... (2, Interesting)

Stanislav_J (947290) | about 7 years ago | (#18393161)

...then they are just looking for a big payday from Google's deep pockets, and are using the suit to force them into some sort of deal the way some other content providers have done. Realistically, there is no way to effectively police millions of clips uploaded on a daily basis for copyright violations any more than Slashdot could police every single post on its site to see if there is anything infringing, libelous, or somehow illegal. And don't forget, YouTube is NOT the only game in town -- they may be the biggest and most popular such site, but many times I have seen a clip that was killed on YT simply turn up on a dozen other smaller video sites -- I don't see Viacom going after them. If you had a physical product that was being sold illegally, you're going to sue Wal-Mart, not Bob's General Store -- you go where the money is.

BUT, sometimes these things depend more on the attitudes and personalities of the rights holders than anything else. I can give an example of that on a much smaller sale. I have an acquaintance who had been providing short, out of context clips of some obscure TV shows that (a) are not being rebroadcast anywhere and (b) are not likely to be offered commercially in any form because there is simply not a big enough market for the material, and it would not have been profitable for them to do so. His efforts appealed to a very small, narrow group of fans. Nonetheless, he received a C&D letter, a threat of a lawsuit, and a demand for compensation from the holder of the rights to these shows. His argument that the owner was not making a dime off the material, and indeed had no intentions of doing so, and that therefore he was causing no financial harm to them, fell on deaf ears. Because, basically, you can own a copyrighted work, and lock it away in a vault never to be seen again, and still demand that no one else make use of the material. He said that the responses he got from their legal eagles were almost petulant -- we don't care that we have no intentions of making any money off this stuff -- we don't want YOU to do so either. (Even though his compensation in this case amounted to a handful of small donations that users sent to help support his site.)

So, clearly, this was a case in which attitude and a strict adherence to the letter of the law were far more important than the money involved, which was, on the rights holder's part, nothing, and on the infringer's part, pocket change. While this is hardly directly analogous to the Viacom-YouTube situation, it does demonstrate how it's not always about the money. To repeat, if Viacom was smart, they would just seek a big licensing payout from Google and be done with it. But, for all we know, Viacom's masters may be anal, set in their ways, and motivated by the notion of an affront more than anything -- this is OUR material -- how DARE they use it -- we're not going to be forced into a deal with them even if it means a big profit for us -- WE will control who uses our stuff.

Larry's off base (again) (2, Interesting)

pixelm (1077253) | about 7 years ago | (#18394263)

Viacom is not trying to renegotiate the DMCA - Lessig is. And he's trying to persuade the Supreme Court to agree with him. The DMCA protects passive storage - think web hosting companies. YouTube obviously has knowledge of what's up and filtering is implemented in a lot of places, including MySpace (with approximately equal volume). In short, YouTube is arguing that it can sell content to users (by advertising to them), but doesn't itself know what's on. Lessig argues that the court in Grokster was wrong because it found a technology to be bad. It didn't. P2P continues on - its a platform for telephony (Skype) and even licensed television (Joost). What the court found is that if you write a business plan that says "let's find out where burglars hang out so we can fence their stuff" you have crossed the line from a second hand store to a co-conspirator. Viacom argues that YouTube should do what it can to eliminate known infringements - what's wrong with that? If you put yourselves in the shoes of any artist - how do you feel when someone is profiting from your stuff without your permission? And how could you possibly police every company that sets up a user-generated content site? Viacom's not asking for YouTube to be shut down - only that it act responsibly. If you're constructing a building and cause damage to the building next door - you fix it and keep on building. Doesn't seem unfair.
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