Demonizing us

I’ve been reading Viacom’s boneheaded $1 billion complaint against YouTube. Viacom complains about YouTube but, in truth, they’re complaining about their own viewers. They whine about theft but, in fact, they’re whining about recommendation, about their audience finding them more audience. Viacom is trying, singlehandedly, to turn the TV industry into the music industry. They are trying to spread stupid. From the complaint, notice what they’re really complaining about is their fans (my emphases):

Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. . . .

Because YouTube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.

Uh, their complaint there is with the law.

In the meantime, YouTube profits handsomely from the presence of the infringing works on its site.

Not yet.

And even after it receives a notice from a copyright owner, in many instances the very same infringing video remains on YouTube because it was uploaded by at least one other user, or appears on YouTube again within hours of its removal. YouTube has deliberately chosen this approach because it allows YouTube to profit from infringement while leaving copyright owners insufficient means to prevent it.

I’ll requote the guy from Morgan Stanley below: You can’t obstruct markets. You have to anticipate them. You need to go with the flow.

At last week’s Online Publishers Association, Betsy Morgan of, said that when an infringing clip goes up on YouTube, they take it down and then replace it with a noninfringing, official copy, which has the added benefit of enabling the conversation to cluster around one rather than many copies of the same event. That’s smart. I guess when Viacom and CBS split up, CBS got the IQ.

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  • tim windsor

    Viacom’s YouTube purge went to absurd levels, including a 30-second clip I’d digitized from an old VHS tape of Adam Curry in his big-hair days. It was fair-use through-and-through, including editorial comment, yet still it got yanked, no doubt because “MTV” was a tag.

  • Brilliant, as always, Jeff. You’ll get plenty of “tilting at windmills” cracks, but that’s what ya do.

    Only one counter to your analysis: “They’re trying to spread stupid.” Here’s hoping to hell they are not. Stupid spreads exceedingly well. Stupid spreads like oily margarine. There are successful business models built on nothing but spreading stupid.

    Viacom’s not trying to spread anything, fortunately. They’re trying to get the spread back into the tub of goo.

  • Paw

    So, let’s say hypothetically…

    I go ahead and create a website called Jefftube. It doesn’t have any original content of mine, but is simply a repository for “fans” of Jeff Jarvis to upload the best of Jarvis, whether it’s printed word, video, audio, whatever that fans think is worth putting there. I sell advertising on Jefftube and keep all the money for myself – hell, it’s MY website, isn’t it?

    If you (Jeff) come to me to negotiate a portion of the ad revenues I accrue from your work, why should I bother to do so? You can send me as many cease and desist letters as you like – as soon as any Jarvis content comes down, some more goes up and it’s YOUR responsibility to notify me about taking it down – which I’ll do eventually.

    Anyway, according to your model, it’s free publicity for you. I’m in fact helping you find a new audience – none of whom has to go anywhere but Jefftube to find the best of you. It’s the recommendation that counts after all, doesn’t it?

    Meanwhile, you do all the work, I do none of it and I make money. How does it feel?

  • one of the issues that Viacom has previously mentioned is at issue for them is that YouTube is not acting entirely as pure platform storage provider/ISP in order to gain the legal protections accorded to such, but actively plays a role promoting access to videos and hence s/b held liable for willfull infringement. not saying that I agree w/their line of thinking, but the issue seems to be more around the status being accorded to YouTube and hence the standards of liability they should be held to.

  • Viacom has precedent on its side. The most relevant case is A&M Records, Inc. et al. v. Napster, Inc.

    “Napster allow[ed] its users to: (1) make MP3 music files stored on individual computer hard drives available for copying by other Napster users; (2) search for MP3 music files stored on other users’ computers; and (3) transfer exact copies of the contents of other users’ MP3 files from one computer to another via the Internet.”

    The appeals court found that because mp3 files are not transformative, the downloading was commercial (“repeated and exploitative unauthorized copies of copyrighted works were made to save the expense of purchasing authorized copies”), and the market for recordings was harmed, Napster’s users’ exchange of mp3 files was not fair use.

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  • baker

    […] If, in its negotiation with YouTube, Viacom manages to crack that nut – getting revenue plus promotion plus branding plus content while helping the audience do what it wants to do – then that would be wise, indeed. […]

    Agreed, but technically speaking, cracking that magic nut would require Google to recognize a user-submitted Viacom clip as a Viacom clip and tag it with appropriate advertising. That sounds a lot like filtering. In which case, use that filtering technology to weed out copyrighted content in the first place. Problem is, filtering is imperfect and infinitely hackable.

    […] Rather than cutting off new distributors and promoters, I say that producers should be finding the ways to take full advantage of the opportunities they present. […]

    This is all but impossible unless the new distributors or promoters enable the business opportunity. Otherwise, any such distributor or promoter can simply hide behind “Limitations on liability relating to material online,” right? Because it’s not their fault that a hit film or television show can be encoded for the web and posted on their site. Is this what you call going with the flow; submitting to the fact that media will always be hacked, made free, and when one of these sites reaches a critical mass and is bought out by one of the richest companies in the world, it’s incumbent upon the producer to figure out the business model for every instance and permutation of their copyrighted content? Wow.

    The fact that YouTube has “not yet” […] profited handsomely from the presence of the infringing work […] is no excuse, in my opinion. Just because my friend hasn’t noticed that I stole his Battlestar Galactica Season 1 box set doesn’t mean that it’s not stolen. Hey, it’s not my fault that he made his DVDs so accessible, and just because I watched his DVDs doesn’t mean that I should help him pay for the box set. Besides, he can just watch those episodes on YouTube. It’ll be just like having his DVDs back.

  • Saundra

    Maybe some of you critics are name-calling cause you have your money tied up in Google stock? According to MarketWatch article posted today under the headline “YouTube deal a bust for investors so far” Ben Chamy writes how Google stock is down and investors want to know where the promised copyright filtering and big media content deals are?
    Here’s what Google Chief Executive Eric Schmidt is quoted as telling investors two weeks ago ” “It’s unclear what the monetization will look like, because it’s too early. We’re going to have to find that out. It’s sort of the big project for this year.” I know these Google-guys are your darlings, but really now, who’s looking like a the bonehead here?

  • Viacom needs to throw the high hard one because it has no viewers, actually — no audience and no fans. Jon Stewart and Spongebob — now THEY have viewers, audience and fans.

    I don’t ever go to see Warner Bros. movies or make it my business to frequent Regal Theaters. It may occur to me that, huh, ABC or FOX has a nice lineup this season but they earn no loyalty from me for that.

    Content creators — artists — are whom I connect with. Viacom et al need to press their property rights while they still possess them, the better to stave off as long as possible the inevitable, complete empowerment of talent by customers who want to live in an a la carte world and couldn’t care less about studio or network branding.

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  • Paw

    You are absolutely right, John – content is king. However, until “talent” devise an alternate means of distribution (which they will want to control, to insure THEY get paid in full) with enough critical mass to offset costs, the Viacoms of the world will continue to be necessary to their survival. It doesn’t matter how wonderful it is, if you can’t find it or if too many people steal it.

  • So Jeff, do you really think Google is entitled to the ad revenues that YouTube generates from Viacom’s programming?

    By the same analysis, would you support my creating a pirate tv station where I re-broadcast Viacom’s programming with my own ads spliced in?

    And how could you support the one and not support the other?

    Sweet mysteries of life.

  • Thanks for the endorsement, Paw. I found your argument compelling and agree that the true owners of intellectual property really do own it, and that they shouldn’t be blackmailed into making a great deal if they don’t want to.

    What I think will happen is a change in the balance of power, not the evaporation of Big Media in favor of massive creative entrepreneurship. Some of this is old hat: from the demise of the studio system to Clint and Tom controlling everything they do and (the late) Johnny and Dave owning their own shows, not the networks on which they appear. It’s an especially interesting question when the cash catalyst is public property, like (ahem) a broadcast spectrum.

    I’m not saying Viacom doesn’t provide a service. I am asking how much Don King deserves when he’s not the one taking the punches :)

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  • Nicely put!

  • Seth Fopeano

    Am I crazy for thinking this? When push comes to shove, if Viacom doesn’t want their product on YouTube, then why shouldn’t they respond this way? It sickens me that the founders of YouTube are applauded as “innovators” when about a third or so of their website is copyrighted material. You are correct in saying that you can’t obstruct markets, but if the material is copyrighted why can’t Viacom decide what to do with their material? I also read that Viacom related websites hits are up since battling the behemoth Gootube. I’m sorry I just cannot side with Gootube on this one.

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  • I would think the Google counterclaim would include something to the effect that they have the fundamental right to assume property because of the “6 million pitchfork and torch bearing” mobsters behind them.

    Right Jeff?

    – Amanda

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  • Wow…and I thought all the mavens would come out on this one…I can see only a few, here, at most…

    I can see where Viacom is coming from, but that’s largely because I can also see the stupidity that has been behind the tanking of Detroit auto makers. New ideas do not sell well to entrenched, blinkered mentalities…or, to mix metaphors, it’s sometimes very tricky to get an old horse to learn to drink from a new watering hole. If the morons in the GM, Ford and Chrysler boardrooms would wise-up and start making fully-electric cars, we might not have to worry about selling-off all our beachfront properties in Florida before the middle of the next decade…and at the same time, we could sieze a major share of the emerging Chinese auto market…

    What a number of your detractors seem to miss is that ‘the media’ is changing. A lot of us simply don’t care about Viacom’s products…we spend more of our free time online. I’m sorry (not terribly so) but the few times I’ve seen Bill Maher have been confined to video tapes loaned to us by one of my wife’s friends: we don’t have cable, because we’re not willing to shell-out the ridiculous rates for the swill the local cable company offers as its ‘basic package.’ (Sorry Bill – you ARE brilliant, btw…) I’m likely not viable as a slice of any ‘normal’ demographic, but I’ll bet the number of those like me is growing rapidly. (Oh, and the only time I’ve ever seen ‘da sponge’ has been ONLINE…)

    Viacom’s actions remind me very much of the fact that broadcast media (and this includes ‘those cable guys’) are up against a media paradigm shift – and they are trying to stay alive, literally. So, I guess I can hardly fault them for trying to carve the heart out of the new kid on the block, especially when that kid is using some of Viacom’s stuff to boost its profit margin. But Viacom will ultimately lose, in the end. That’s the sad part. They’re going to go down in flames, and things like this might drag Google/YouTube with them, but that’ll just leave a vacuum for another start-up to fill…and filled it WILL be. Kill ONE Google/YouTube and a HUNDRED will spring up in it’s place…

    Big time media producers need to keep in mind that there are a couple zillion webcams out there now, so talking heads aren’t just a dime a DOZEN….they’re like a dime for about thirty THOUSAND…and growing. In all honesty, I find many of YouTube’s indy vids far more interesting and entertaining than, say, almost anything any network anchor has to say (including Katie) and some of the indy vid productions on there are vastly superior, in terms of laugh-potential, than any sitcom. Who needs good writing, or bloopers, when you can have spontanaeity…and bloopers…AND local interest…for FREE?

    So…I googled Viacom’s website and wrote the president of the board of directors. I told him they (Viacom) were making a big mistake (I emailed it to the shareholder’s feedback email addy – nothing gets boardroom attention quite like an email from an investor–do I own Viacom stock? Who KNOWS, man? My portfolio is all over the place–“probably” is the best answer I can think of.) I was a bit more serious than I am here, but the points were essentially the same: ‘…you guys are missing the boat on free advertising,’ etc., etc., “…this might scare off investors…” yadda yadda… Hopefully some underling with a modicum of intelligence will read it and figure out a way to ‘interpret’ it to the high priests of entertainment at Viacom…

    If Viacom is so smart to be suing Google/YouTube, howcome CBS is not only NOT doing the same thing, but seems to be perfectly okay with YouTube’s use of their materials? Huh, Paw? Huh? Huh? Answer: brains in le boardroom. (Time to call my portfolio manager, methinks…it’s either that, or uraniumy…)

    Who cares who produced the stuff? You see a short clip that makes you laugh, or piques your interest, you go looking for the whole deal – click – it takes you to VIACOM…or CBS….or HBO…or MTV. John Abell is right – it’s the artists that are the items of interest, not the boardrooms behind them. And what a relief that soon those artists will be able to own and produce their own stuff – as soon as they take it off the air or cable and go online with it, full-bore…music, comedy, talk-show, whatever… Not quite full-circle back to the times when minstrels used to pass the hat, but closer than it’s been in centuries.

    For a better (and more reasonably priced) product, eliminate the middle-man…

  • baker

    for Tansley…

    >>the stupidity that has been behind the tanking of Detroit auto makers.

    No one’s offering the same cars for free.

    >>but I’ll bet the number of those like me is growing rapidly.

    That rings of hyperbole.

    >>Kill ONE Google/YouTube and a HUNDRED will spring up in it’s place…

    No need to kill them, it’s happening anyway.

    >>And what a relief that soon those artists will be able to own and produce their own stuff.

    As the web has shown us, if a piece of media is hyper popular, it will be set free. Then, how do you suppose the artist makes a buck? Do they just chalk-up the millions of plays that didn’t generate revenue as the price of doing business?

    + + +

    Many are quick to bash Viacom in the blogosphere, but I haven’t read a single sentence dedicated to future options or models that could support and protect the content owner’s investment. Yes, there will always be another YouTube, we get that, so then what? Is the content owner simply effed? As I blurted on LostRemote…if you keep extrapolating the “it’s just going to be free somwhere else” concept to forthcoming devices and delivery options, it starts to feel like it will become impossible to make a dime off of content, because technology can keep liberating it from the shackles of a business model, like a virus that removes ownership.

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  • Create an original work of art and you’re nothing, but steal one and you’re an “innovator”. Damn fine inversion of values we have these days.

  • From my blog at

    “Basically, [as Paw puts it] Viacom aren’t stupid, they do have a point, and perhaps in their case they should be taking the action that they are.

    “The CBS/BBC model is a good one, but the merit of it is found not so much in the ‘clever’ strategy itself, as in what it intends for the quality and nature of their content. The secret to making use of YouTube as they plan, will be for CBS and the BBC continually to offer, on their own channels, fresh, appealing product, which competes with what should be regarded only as its own advertising on YouTube.

    “It will be a shame if Viacom wins a lot of ground against YouTube in the outcome of this law suit: the CBS/BBC model is one that will only drive better content.”

  • josiah

    As much everyone would like for this to be a world of free love, free booze, and free videos of anything and everything you want to be entertained by, the simple fact is that this world of ours has an economy, and is driven by money (yes, yes, religion too, but money helps to further religion, anyway…). YouTube did make money from Viaco’s videos, that is all there is too it. Viacom, like it or not does have a right to compensation for thier ‘intellectual properties’.
    If you really want to see the above happy crappy world of “everything on demand” then look at places like Joost and Babblegum. Advertisement driven, but at least making inroads to truer video on demand via the Internet.

  • for baker…

    No one’s offering the same cars for sale, no. The point was, tunnel-vision leads to blinkered thinking.

    on betting the number of those ‘like me’ is growing – ref.:people who get their news/information/entertainment almost exclusively online.

    How does the artist make a buck if his/her success is ‘set free?’ Well…Stephen King found a way to do that with a downloadable ‘time-bombed’ product. Plenty of software programmers time-bomb their demos (the demos remain operable to a point in time, after which they cease to function unless you obtain an unlock-code by sending them the requisite money. Now, you could argue that, even if time-bombed, a song can be re-recorded, then re-transcribed to file…but that sort of thing is happening all the time, anyway. I’m spending a good deal of time at home converting my old vinyl albums to audio CDs using my computer – I paid for the albums initially, and I see no reason to pay the music industry’s inflated prices for a remastered version I can make myself, using cheap software on a machine built from spare parts.

    Protecting content, in this era, is virtually impossible.

    Only one thing really works – the knowlege, on the part of the fan, that without return, the artist can’t continue to produce: so supporting the artist becomes an act of enlightened self-interest…kind of like selling one’s SUV so that there’s a planet to drive on in the coming years.

    It’s fanbase loyalty that will help to keep deserving artists alive and producing…along with any advertising the artist elects to become associated with in order to generate extra revenue. What we’ll see is something of a return to the old patronage system that used to support artists in Renaissance Italy and in the royal courts of Europe, only the ‘patrons’ will be the online fanbase of each artist. Of course, daVinci didn’t pause for commercial breaks…but then, he didn’t get out much, either…occasion trips to try flying machines, but most of those ‘field trips’ were local, anyway…

    This is yet another reason why the telecom companies are so eager to grab the internet and stake their claims on vast swaths of it – they are trying to position themselves as the new middlemen of the information age. You can control the spice, or control the demand…but without the road connecting the two, you won’t make much money…and whoever controls that road stands to make the most money.

    Everybody acts as if advertising is the bane of civilization, but it’s really more the hallmark of civilization. To be successful at it, the trick is to position it judiciously and not overdo it, as is the fashion of media-hoes such as Murdoch (FOX), so that the consumer mutes, tunes or TiVo’s it out. The last time I watched broadcast network television, I was appalled – there were brief segments of programming, maybe 10 mins. avg. in length, between commercial ‘islands’ which featured sometimes 10-12 ads. The old saw from advertising came back to me: ‘programs exist to fill the spaces between commercials.’ How low we have sunk since PLAYHOUSE 90.

    SIDEBAR: Even though PBS has commercials, they’re quick, tasteful, and usually only take up the brief intervals allotted for them between program timeslots. This is called intelligent scheduling.


    for josiah…

    Viacom can go after the petty profits their clips made for YouTube, but sussing out the damages will take years and the only real profiteering will be done by lawyers. An intelligent producer would simply cut their losses and focus on generating new product…as so many software companies do to stay ahead of the piracy curve… What you’ll see in the future is the evolution of on-demand into virtual arcologies with the artists at the apex and their fanbases providing the support…which is kind-of what’s been happening, anyway…and the extra requisite cellulose supplied by prudently administered advertising…

    Sorry… ads are not just going to ‘go away,’ folks…

  • If Viacom owns the content they have the right to keep it from being posted on Youtube, simple. And Google/Youtube should respect that right. It’s really the fundamental principle of ownership rights in this country. It may be a boneheaded move from a business perspective but that’s besides the point.

    The DMCA was never created to faciliate the wholesale posting of content against the wishes of the copyright owner. It was meant to protect ISPs who against their knowledge had copyright infringing content posted on one of their hosted websites.

    I believe Google will lose, and it better. Because if not, watch out. There will be plenty of others ready to “syndicate” your content royalty free. And there won’t be anything you can do about it (other than spend hour upon hour upon hour trying to get them to take it down).


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  • My story :
    How to file a law suit again google? cause recently i encounter some problem with google.
    Story like below :

    I use to own Google adsense account since year 2006 (keep good fate on it), late 2006 my account reach USD 100 but i din’t withdraw it cause i understand is not worth to withdraw USD 100 for foreigner like me (bank charges, currency exchange) …..

    This year (2007) April i add another web site in my account and it do generate good profit (i happy with it), then at late Jun i bought over a website (7 year history with good traffic/pageview) then i add adsense in ….

    But today 17/07/2007 my account get disable and all my money gone …….

    So below is my question :
    1. How come google take away all my money ? (from 2006 till now).

    2. If there is afraud click or illegal activity, you surppose to ban the URL not my account. why ban (extra profit for google adsense) ?

    3.Google adsense how do you return all the money to the publisher since early year 2006 (i know cause i use adword) ?

    4. If i have illegal activity, taking out google adsense is the only solution, then why not taking out google search Bar ? (Goolge are not paying me, why should i advertis for google ? ).

    I need a clear answer from Google ….

    I found google Policy is not fair for user with low page view and do believe that is million user like me facing this problem …..

    Thanks god internet exit and i can search for more help.

    wish to hear your reply soon.

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