YouTube, copyrights and copy wrongs

In the midst of copyright hysteria...

The longer I stay in this business, the more I think I should have listened to my mother and become a copyright attorney. Don't get me wrong -- I love digging for dirt and punishing the technologically wicked, but just think of the employment opportunities.

We're in the midst of copyright hysteria, fueled by the recording industry, movie studios and TV producers terrified of how the Net has flipped their distribution models. Example one: a federal judge whacking TorrentSpy with a US$111 million judgment, without even ruling on whether a search engine should be held liable for the results it produces.

Sometimes these copy wrongs can have personal repercussions. Reader J. E. writes:

My son is very high functioning on the autism spectrum; today, he'd get a diagnosis of Asperger's Syndrome. He's also a budding animator and animation fan, who has used YouTube to post his own animations as well as short clips he wanted to share with others who shared his interest. Unfortunately, YouTube recently suspended his account after he posted a 30-second clip from a Sponge Bob episode, because he'd gotten a number of prior takedown warnings for similar short clips. I wrote the below letter to the copyright contacts at YouTube and Google, and got back a form response about the DMCA; I tried again and got no response. My son is devastated about being unable to share his work with the world, to the point that he was literally trying to hurt himself in anguish tonight, and I promised him I would try to do something more to get his account reinstated.

(I have contacted YouTube on J. E.'s behalf, and an answer is due shortly. I'll post an update when it arrives.)

To be fair, expecting YouTube to know the personal details of all of its users is asking a bit much. To them, this boy is just another Sponge Bob Pirate. But the notion that posting any clip, of any length, of any copyrighted show automatically violates the content owner's rights is equally silly. (Could someone out there in Cringeville please explain to me how a 30-second clip of a show is essentially different from a commercial promoting that show?) Yet that's the nature of copyright law today.

Here's a classic example. Last August, YouTube removed a video posted by North Carolina filmmaker Christopher Knight because the clip was originally shown on VH1's Web Junk 2.0 show. The problem: Knight created the clip in the first place, and VH1 used it without even notifying him. (After two weeks of back and forth, Knight convinced YouTube to restore the clip. His account of how he did it is here.) So VH1, a Viacom company, felt it was perfectly within the boundaries of fair use to show Knight's work on TV; but once they showed it, they decided they owned it. Ultimately they didn't own it. But if Knight hadn't fought back, the result would have been the same.

Overzealous attorneys, badly written laws, content producers who believe they have a divine right to everything they've ever touched for all eternity, and cowering Web 2.0 companies primarily interested in CYA -- it's a bad ugly mix.

It's only over the last year or so that the buggy-whip manufacturers and manure haulers of the late 20th century have realized they're in danger of extinction. Viacom, owner of the rights to both Sponge Bob and VH1, made a deal with Joost to deliver some of its content for free over the Web last year and made <i>The Daily Show</i> videos available free on its own site.

Hulu, Veoh, and other video sites are making similar deals with Hollywood. It's time to add a little common sense to the stuff people post to YouTube as well. If free video is good enough for Jon Stewart, why not for Sponge Bob and one of his biggest fans?

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Robert X. Cringely

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