We frequently use video clips on this site, many, but not all, from YouTube. To say YouTube has revolutionized web video content would be accurate, neither an understatement nor an exaggeration. The amount of material uploaded to YouTube is staggering. It is also the frequent target of specious take-down demands and is now the subject of a lawsuit by Viacom and other media giants alleging YouTube should check every upload for rights ownership. YouTube responds that such a requirement and threat of liability would put it, and most other service providers, out of business and points to explicit provisions in the federal low (the infamous Digital Millennium Copyright Act, “DMCA”) that gives online services protection from liability if they obey a legitimate take-down request. It is not a question of whether YouTube is hosting copyrighted material. All videos — and blog posts, for thqt matter — are automatically copyrighted from the instant of creation. On this site we have attached a license to our work that allows anyone to use it, but it is still copyrighted by us. The question is ascertaining what the conditions of use of the content might be, and YouTube claims that it is the content provider, i.e., the uploader, who is legally responsible and in the position to know this.
Comedy Central, a Viacom company, makes its clips freely available for embed on sites like ours on their own site, and much of the same material is available hosted by YouTube. The blog reader usually doesn’t know (or care) the source of the clip, whether the Comedy Central site or YouTube (for the record, I usually use the Comedy Central site). There is nothing unusual about this. There is a lot of commercially valuable material on YouTube, much of it put there by the rights holders themselves in recognition that this exposure is great advertising and comes at no cost. Yesterday the first briefs from the lawsuit were made public and in them we find out that Viacom itself has for years been secretly uploading its own copyrighted material to YouTube, concealing the source:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.
Given Viacom?s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong. (Posted on the YouTube blog by its Chief Counsel; hat tip Boingboing)
It’s time the intellectual property system be wrested from the hands of hypocritical scumbags like Viacom and returned to its intended purpose under the Constitution, to encourage creativity. I’m not the first person to say this, of course.
So sue me.