March 19, 2010

Viacom vs. YouTube Lawsuit Meets Sergio Leone

Greetings. By now you've probably heard about the release of rather explosive court documents related to Viacom's three-year-old lawsuit against Google's YouTube, seeking [Cue Dr. Evil] one BILLION dollars in damages. Both Viacom's filing [pdf] and Google's filing [pdf] make for fascinating but highly discomforting reading.

Yet as painful as these documents may be, they represent only the tip of the iceberg relating to complex changes occurring throughout the Internet and the world.

The dramatic essence of the filings can be imperfectly but quickly summarized.

Viacom points to what many observers would categorize as rather arrogant and cavalier e-mail communications between YouTube's founders as supposed proof of a massive disregard for copyright laws. (Note to self: Avoid casual use of the word "evil" in tactical planning being discussed via e-mail, even in jest.) Viacom also points to internal dissent at Google regarding their potential purchase of YouTube and what was described as YouTube's heavily "pirated" content.

Google's document accuses Viacom of an astoundingly bizarre, massive, and utterly hypocritical stealth campaign to upload Viacom videos to YouTube even as Viacom was complaining about the videos' presence on YouTube itself, including hiring outsiders to do uploading (sometimes from sites such as Kinko's to obscure sources) and the use of "uglification" processing techniques to give the uploaded videos a more "amateur" gloss. Google also notes that Viacom's selective quoting of YouTube e-mail communications out of context cannot reasonably be expected to convey an accurate sense of deliberations within YouTube at that time.

Further complicating the situation is that Viacom itself had attempted to purchase YouTube before Google did actually acquire YouTube! And an interesting footnote: Viacom and YouTube seem to generally work pretty well together today.

But back to our story.

Uglification -- yes, that seems like the right word. The lawsuit documents -- taken at face value anyway -- make for a fairly ugly picture on both sides.

But rather than focus solely on the star players, let's pull out for the long shot and try bring the broader issues into focus.

Perhaps the late Sergio Leone's film work can help us.

While reading the Viacom and Google documents, I inexplicably found myself thinking about Leone's 1966 film masterpiece "Il Buono, il Brutto, il Cattivo" (U.S. title: "The Good, the Bad and the Ugly") -- one of my favorite films.

Vastly more than a simple Western, GBU is an intense portrait of very different, very human, and certainly imperfect individuals in the chaos of a rapidly changing world -- by necessity working together toward a common goal of gold -- while at times also trying to kill each other. Highly recommended. Do watch it if you can.

A fascinating aspect of the film's three main characters is that even while doing things that are clearly dishonorable at best -- and in some cases far worse, they are not merely black and white caricatures. They all exhibit aspects of ugly, good, and bad -- and a large dose of opportunism -- driving their actions forward through the storm of events (in this case the Civil War) surrounding them.

Today we're long past the Civil War, but we're well enmeshed in the Internet Content Wars.

Computing and Internet technologies have rendered fundamentally impotent the duplication and distribution cost elements that traditionally have protected copyrighted audio and video works, by virtue of it previously being inconveniently expensive in most cases to routinely obtain such materials from other than "official" sources.

But as I noted in Copyright: Dead Man Walking, the copyright game has fundamentally changed, and no amount of nostalgia for the "good old days" will put that genie back into his bottle.

As in Leone's GBU vision of the Civil War, there are chaotic aspects to the Content Wars as well. Some countries, including Western ones like Australia and New Zealand, are implementing ludicrous attempts at content filtering (China's censorship we already know about, of course.) Criminal convictions have taken place against Google executives over YouTube content in Italy. Google insists (correctly, in my opinion) that YouTube properly adheres to the U.S. DMCA and that YouTube's content fingerprinting system helps avoid copyright abuse.

But calls to pre-screen YouTube content before making it publicly available have been rising. Such screening procedures are completely impractical given the rate of YouTube uploads (currently running at something like 24 hours of video uploaded per real-time minute, and rising fast) -- even if it was straightforward to untangle myriad fair-use and other related issues associated with user-submitted video clips -- which definitely isn't the case. And on and on ...

Governor Tarkin said to Darth Vader: "This bickering is pointless."

And so it is. Ending the global Content Wars will not happen overnight. Perhaps we're looking at some sort of War Without End as domestic sensibilities conflict with an inherently borderless Internet. Perhaps. But I don't believe that such an unproductive course is inevitable.

There may be enough dirt to go around in Viacom vs. YouTube. Yet I would argue that cooperation is the naturally most beneficial state for entities such as Google/YouTube and Viacom. The time, money, and human energy being wasted in battles like this is disgraceful and toxic.

Search engines, content aggregators, content providers, content producers, and the other various aspects of the Internet content ecosystem -- they, and Internet consumers as well of course, all have chords to play in this vast symphony of technology and creativity.

Future historians may look back on this period of the Internet's genesis and chuckle at our naivete. "How could those ancients have possibly thought that they could keep obsolete concepts of copyright and content control alive in the face of the revolution represented by the Internet, even way back then?"

At the end of Leon's GBU, two of the main protagonists, one of whom is -- well, "hanging around" at the time -- "agree" to share the proceeds of their long quest. "Four for you ... and four for me!"

There was plenty to go around. And there still is.


Posted by Lauren at March 19, 2010 09:52 PM | Permalink
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