Whose Tube is it, anyway?

Cringely examines the Viacom lawsuit against YouTube and assesses what has and has not been banned

Frankly, I thought Viacom's US$1 billion law suit against YouTube was dead. YouTube has been kicking people off its site left and right for posting copyrighted material, even if they didn't always deserve it. And Viacom had started allowing its best material -- like South Park and The Daily Show -- to be shown on the Web for free. It sure sounded like Peace in Our Time.

Apparently not. Earlier this week, Google filed its response to Viacom in court, raising the specter that a loss could put the very nature of the Net at risk -- "threatening the way hundreds of millions of people legitimately exchange information."

As part of its defense, Google claims YouTube has been following the safe harbor provisions of the DMCA, which essentially says you're fine as long as you rat out and/or shut down those who offend. For ISPs, safe harbor translates into handing personal account information to the RIAA after subscribers have been accused of swapping files online. (Even if you happen to be dead at the time.) For YouTube, it means removing offending clips and shutting down accounts -- even if the clips don't necessarily break copyright laws.

That's not enough for Viacom. They want to take YouTube down. But their claims about the damage they've suffered at the hands of YouTube stretch credulity beyond the breaking point.

For example: Nearly every story on this topic carries Viacom's claim that Al Gore's eco-doc An Inconvenient Truth has been viewed on YouTube "an astounding 1.5 billion times." Viacom's actual complaint doesn't say that. It alleges that 150,000 "unauthorized clips" owned by Viacom (including An Inconvenient Truth, The Daily Show, and The Colbert Report) have been viewed a total of 1.5 billion times on YouTube -- an average of roughly 10,000 times apiece, if my third grade math skills haven't completely failed me.

An Inconvenient Truth grossed almost US$50 million worldwide at the box office. (For a 100-minute Powerpoint presentation by one of the world's most boring bipeds, that's phenomenally good.) It made another US$32 million in DVD sales. Let's assume $5 per ticket and $16 per DVD, just to make the math easy. That means, at minimum, 12 million people paid to see that movie. Yet, somehow, thousands of YouTubers watching two minutes of Al Gore holding a pointer are depriving this US$11.5 billion company of desperately needed income.

When someone posts, say, a two-minute segment from The Colbert Report, what has Viacom lost, exactly?

1. YouTubers are depriving Colbert fans from entering into their Wayback Machines to go back in time and rewatch the original broadcast.

2. Colbert fans will no longer TiVo the show it the next time it airs, depriving them of the opportunity to watch it while fast forwarding past the commercials that have already paid for the program.

3. Viacom would be deprived of the income it would receive from selling the Complete Works of Stephen Colbert on DVD -- except that the people most likely to buy the DVD are the ones who watch (and post) Colbert clips on YouTube.

4. Viacom would also be deprived of people who encounter Stephen Colbert for the first time on YouTube and say, "Is that guy kidding or is he really a right wing whack job? Let's tune in and find out."

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Robert X. Cringely

InfoWorld
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