Arnold Kling  

Viacom vs. Google/YouTube

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Taxes and Tipping... Against Statistics...

Paul Kedrosky writes,


if Viacom wins this suit and busts YouTube--and there is a very good chance it will win; it is, after all, uncontested that this is Viacom's media property we are talking about--that won't change what consumers want one whit. They are demanding unbundled media, sold everywhere and in myriad assortments. Period. And if Viacom won't provide it then some new media entrepreneurs will.

What stops the Wall Street Journal from "busting" this blog for quoting from Kedrosky's article? Some possibilities:

a) I have a "fair use" justification, and YouTube does not.

b) The damages that could be recovered from me are small--not enough to cover court costs.

c) The WSJ does not want to stop me from quoting from its articles.


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COMMENTS (4 to date)
William Newman writes:

a. Do I win anything?

I'm largely unfamiliar with the details of the law on fair use, but my very strong impression is that picking a snippet and commenting on it is exactly what one family of exceptions in the "fair use" area is intended for. Furthermore, while you and the WSJ are basically on good terms, and you're making a friendly comment, there are countless cases of people and publications which loathe each other picking out a passage and commenting on it with a generous helping of venom. Thus, if it were possible to sue over it, there'd be no shortage of people tempted to do it, and no particular shortage of people petty enough actually to do it. I've never heard of a single such case; have you?

Conversely, as I understand it, the YouTube thing involves large chunks of material, large enough they'd be quite saleable individually, with no particularly defensible claim that the material is being used as an anchor for derived remarks. If it were a borderline case of some sort --- a film school website devoted to partial frames illustrating points like "see why you should use the Fratzbangler lighting technique for large animal shots," perhaps --- then it might be complicated. But this seems to be a case where folk who intend copyright to protect the right of an author to charge for his work agree that *someone* should be at fault.

The case is still complicated by who should be at fault --- to what extent is it OK to go after Youtube wholesale instead of only going after individual pirates retail? But it's not much complicated by any ambiguity about "are they just taking small snippets for convenience in referring to them, so that no fault exists?"

Brad Hutchings writes:

Mark Cuban (that's a link) has been all over this since the acquisition. He seems to think that the Safe Harbor provision of the DMCA is the operative statute, with Google not able to play both sides of it. Are they acting as an ISP or a publisher? Cuban also recognizes from his Grokster involvement that lawsuits are part of how big media negotiates, which is quite different from SOP in the technology sector.

The most thoughtful comment on his Viacom suit entry suggests that YouTube might institute a policy of letting users upload sub-10 minute videos without prior review and screen longer videos before making them active. Obviously, the labor and/or technical resources to implement such a system would be huge, but it would undercut 95% of the problem that Viacom really has, which is the posting of full-length epis sans commercials. It would be interesting to see how the courts feel about short clips and fair use, but we may not see that this round.

Kent Gatewood writes:

What keeps the follow on of YoyTube from putting their servers in Russia, and telling Viacom sorry?

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