Has Viacom Gone Too Far?

Very interesting take on the recent court decision regarding Viacom’s request for user records from Google/YouTube by the District Court for Southern New York Judge Louis Stanton. In his article “Viacom Has Gone Too Far” author Lance Ulanoff gets a bit upset by what he sees are the implications for users of YouTube. Among his chief complaints? Viacom will now probably go after millions of members to try and get them to pay for the copyrighted videos they viewed on YouTube because they are greedy. Well, he says Billionaire Sumner Redstone is greedy…

Read some of these blurbs from the story:

“Once Google delivers the terabytes worth of data, you and your minions can pour over it looking for copyrighted content and those who watched it. Oh, I know you say you just want to understand if people watch more illegal content than legal—like it’s all some academic exercise—but I say there’s more to it than that. You want to go after the viewers. You want to find people who consume too much Colbert Report and MTV on YouTube and find a way to levy a fine on them. “

“With those logs in hand, though, Mr. Redstone, Viacom has the will and means to do all sorts of nasty things. It will learn what copyrighted videos still exist, whether or not people still watch them, and who the watchers are. A witch hunt could ensue.”

What a bunch of nonsense. What did Viacom get the judgement to obtain? User records which can identify which users uploaded the copyrighted videos. Google can and probably will appeal the ruling. Why? Certainly not because they are interesting in protecting their members. Rather they will appeal because once they provide that information, it will no longer be cool to upload videos on YouTube and they will lose advertising revenues. Viewers are only attracted if the content is good….lose the content and you lose the viewers, the ad clicks, and their associated revenue streams.

But the bigger question remains in the author’s mind… “When will they go after the viewers?” Answer: Probably never.

Why? It’s not going to be cost effective nor is there any legal reason to do so. The DMCA is all about those who upload or transfer copyrighted materials, not those who only watch. User data including the transactional metrics for users is very valuable information to have when pursuing a copyright infringement case using the DMCA.

But not because of the information on the viewers separated from the videos uploaded…

The reason to get this information is to isolate the members who uploaded the most copyrighted materials, then build the trail of users who viewed them in order to have metrics backing up the amount that Google/YouTube owes you for the copyrighted content. Secondary reason is that if you lose this suit and Google/YouTube is found to be protected under the Safe Harbor Provision of the DMCA, then you have the data through discovery to go after the individuals who are now responsible for the lost revenues. (Not that they will collect the money, but it will send a strong message.)

We continue to hear so many people say that there is no harm in letting the members of a social network or community upload what they want and control the norms of the site. It’s the Internet for goodness sake! But unfortunately, these folks have had a bit too much of the internet communist Kool-Aid. This case is proving that these people (and many of them are consultants in the online community/social networking world) are on the wrong side and mis-informed. We hope that this case continues to move towards a judgement rather than a settlement in order to provide clarity for any organization that offers its members the opportunity to upload content to their site.

Looking for a better way to deal with all of these issues? Contact us. We’re not lawyers, although we have slept at Holiday Inns from time to time….

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