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YouTube and social media site legal spats

Sprecher Grier & Halberstam (Social Media Portal) - 21 March 2007

YouTube and social media site legal spats

Following recent reports of Viacom suing YouTube for $1bn for copyright infringement, Simon Halberstam looks at how the web will cope with the challenges of copyright protection.

Viacom, better known as the owners of MTV & Nickelodian claim that about 160,000 unauthorised clips of its programmes have been viewed on YouTube's site an incredible 1.5 billion times. According to Viacom, this is a "massive intentional copyright infringement" and YouTube’s failure to take proactive steps to stop users posting this material, and then selling advertising on the back of it is a faux pas too far. Photograph Simon Halberstam, Partner, Sprecher Grier Halberstam

Whatever the result, this clash of the titans is likely to change the legal and web landscape for a long time. But is Viacom right to square up for the fight?

Many copyright owners see that such drastic action is their only choice.  To many content providers, YouTube is a spectre stalking the landscape, a little like the sound equivalent of the Napster and Kazaa P2P file sharing threat of a few years back.

The likes of Napster were relatively easy targets for legal action, on the basis that they intentionally encouraged and facilitated copyright infringement. Whether you think that Napster has been neutered, or simply brought into the mainstream, it is certainly not the same creature it was before.

However YouTube is a very different animal, which claims it does not want this copyrighted material on its site and paints itself as an innocent, passive purveyor of clips.

As far as the average YouTube user is concerned (and I imagine a pimply teenager here ensconced in a dank & fetid bedroom) there should be no such restrictions especially as we are usually talking about limited extracts not the whole thing.

The commercial argument is that if you check out a taster, you’re more likely to go out and buy the whole thing. In other words, the likes of Viacom will if anything make more money out of the fact that YouTube is carrying its clips. Look, for example at the BBC's recent content deal with YouTube which is certainly not born of any philanthropic motivation.

Will users switch off their TV’s and watch all their content on platforms like YouTube? I doubt it, but no doubt this is a worry. It may well be that YouTube content is akin to a trailer for the movies, and is more likely to make viewers switch on to the MTV channel, rather than switching off.

Ever since VHS recorders came on the scene, broadcasters have been worried about the sanctity of the copyrighted output. The world did not collapse because we all started taping the late-night movie and the soothsayers of doom when it comes to the likes of YouTube may not be right either.

Having said that though, as a lawyer my sympathies lay with the company whose investments the material represents.  Certainly under English law and in most of the rest of the world, it is the privilege of the copyright owner to decide where and by whom its work is displayed.  This is the case with almost all forms of merchandise from clothing to art and from drama to sound recordings.

Without such rights, the incentive to innovate or, at least, to pay people for innovative creations would disappear. Whilst it may not be the profit motive that drives the average creative mind, artists still rather like getting paid.  The music industry is a highly commercial place to sell one’s wares and I can’t really imagine the likes of Madonna carrying on for the sake of their art.

This is equally valid for the company that pays the authors of such work for the rights to display and use their material. Without the promise of making a return on such investments, there is no incentive to publish. Viacom’s MTV for example pays good money for the videos it carries, and no doubt wants to make some money back on the deal.

King Canute is well known for resisting the inevitable, and getting a pair of rather damp feet in the process. It looks like there are still a few Canutes around today. The likes of Viacom will have to adapt to meet the challenges of the modern world. In its own deal with YouTube, the BBC is taking a cut of YouTube’s advertising revenue in return for its content. The BBC hopes that this will also help drive users in the direction of its web site and channels and help it tap into the massive worldwide youth market.  

This is the model that sooner or later I believe Viacom will have to embrace. When and quite how that happens though remains to be seen.

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