Convergence Legal

Viacom (Sorta) Flip-Flops on YouTube; We’re All At Risk

Way back when (2005), Comedy Central’s Jon Stewart gave fans a (pale) green light to share show content after it ran on the traditional tube:

Wired: The Daily Show really exemplifies that sort of new model. It’s on a cable network, not broadcast. It’s among the most popular shows traded online. People download and watch the whole thing, every day. Were you guys aware of that?

Karlin: … If people want to take the show in various forms, I’d say go. But when you’re a part of something successful and meaningful, the rule book says don’t try to analyze it too much or dissect it…

Stewart: … I look at systems like the Internet as a convenience. I look at it as the same as cable or anything else. Everything is geared toward more individualized consumption. Getting it off the Internet is no different than getting it off TV.

Maybe Stewart and Karlin weren’t speaking for Viacom at the time. Or maybe muckety-mucks ignored it because Viacom was focused on how to spin off a large chuck of itself as CBS Corp. But the handlers at Viacom had to have known what they said.

Later, of course, corporate lock-down (“protect the brand!”) occurred and then you could only watch the clips that they thought were cool and you had to go to the Comedy Central website. You could also buy the show from the iTunes store.

Mark Cuban has to be laughing his ass off. At the Online News Association meeting in 2006, he said that Google’s proposed purchase of YouTube was a colossal mistake, citing the copyright issue. Viacom’s $1 billion lawsuit gives merit to his claim.

We Are All At Risk
Viacom says it wants Google’s logs to compare allegedly infringing video watching with non-infringing videos. But Mashable argues that any one of us who has watched a copyrighted clip on YouTube could get sued. Really:

Unless you’ve been extra careful to only watch non-copyrighted videos on YouTube (yeah, right), Viacom could sue you. No, it’s even worse: they could actually win.

That’s because its really easy to move from an IP address to a person … it only means your ISP has to comply with a court order. Don’t believe me? Ask Jammie Thomas and the RIAA. Never mind that the Thomas judge now believes he may have made a mistake last year in that case and there are calls for a retrial.

Danny Sullivan elaborates:

If you only want to know the percentage of “infringing videos” that are watched versus “non-infringing” ones, then you only need a record of the videos requested. You don’t need IP addresses of those requesting them. You certainly don’t need the very personally-identifiable information of those who are logged in and watching them. Remember, this isn’t a case against any particular individuals. It’s against Google in general. Asking for individual viewing data isn’t necessary.

However, as many others have said and written, we live in an age where privacy is an illusion. And our privacy laws lag far behind technological developments. Do you think we can get Congress to give us, American citizens, retroactive immunity like they’re doing for the telecoms that cooperated with White House warrantless wiretaps? Go ahead. Laugh.

Hits v Long Tail
Viacom’s statement led me to reflect on The Long Tail and the current HBR critique which suggested most folks prefer to watch what everyone else watches, ie, hits are more popular than non-hits. Hmmm. Let’s look at Barely Political: Incredible McCain Girl – Hulk Spoof – 1.7 million views; Sexy! Flashy! Wonky! Super Obama Girl! – 4.9 million views; “I Got a Crush…On Obama” By Obama Girl – 8.9 million views. And this is just one alternative content producer.

It’s fascinating that Viacom is persisting in an old-school approach to “guarding” its content. Other “television” conglomerates have embraced YouTube, recognizing the potential for using it as a marketing channel.

Viacom executives are fighting an uphill battle. Digital information is a non-rival, non-excludable good. Imposition of excludability (copyright, pay-to-view firewalls) is an knee-jerk response by an industry that has revolved around twin concepts of scarcity and quasi-monopoly. Today that business model is being tossed out by technologies of abundance (thank you, Chris Anderson).

Maybe, one day, all political commercials will run (free except for bandwidth charges, of course) on the Net, depriving the conglomerates of one bi-annual advertising cash cow. One can only hope.

In the meantime, we, the people, must wait and see. And, ideally, give money to EFF (I have, have you?) and put a call in to our Congress critters.

Sidebar Thoughts: What Is Viacom?
Viacom is a global media giant, although smaller than it once was. Today it is composed of two groups: distribution and production.

Distribution, 60 channels: BET Networks (9 channels), CMT (5 channels), Comedy Central, GoCityKids, Harmonix, Logo (3 channels), MTV Networks (4 channels), MTV Tr3s, MTV2, MTVN International (9 channels), mtvU (3 channels), The N, Neopets, Nick at Nite (2 channels), Nickelodeon (4 channels), ParentsConnect, Quizilla, Rhapsody, SpikeTV, TV Land, VH1 (4 channels), Virtual Worlds (4 channels), Xfire

Production: Paramount Pictures Group, which includes Dreamworks Studios, Home Entertainment, MTV Films, Nickelodeon Movies, Paramount Pictures and Paramount Vantage

In 2006, Viacom spun off its broadcasting, publishing and theme park interests as CBS Corporation. Ironically, CBS created Viacom in the 1970s to circumvent an FCC directive prohibiting networks from owning cable and TV outlets in the same market.

Prior to the spin-off, Viacom Television Stations Group owned and operated 39 TV stations. Infinity Broadcasting was second only to Clear Channel in radio ownership and was one of the two largest outdoor advertising firms in the world. Simon & Schuster operated 38 imprints; Paramount Parks operated five North American theme parks.

By Kathy E. Gill

Digital evangelist, speaker, writer, educator. Transplanted Southerner; teach newbies to ride motorcycles! @kegill

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.