November 13, 2006

• You Tube

  November 13, 2006

  REAL TIME By JASON FRY

  DOW JONES REPRINTS This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers, use the Order Reprints tool at the bottom of any article or visit: www.djreprints.com. • See a sample reprint in PDF format. • Order a reprint of this article now. The Revolution May Be Briefly Televised Popular YouTube Clips’ Short Shelf Life Reflects Copyright Laws Run Amuck November 13, 2006 This summer ESPN.com’s Bill Simmons offered his readers a lengthy list1 of his all-time favorite YouTube clips. As one would expect from Mr. Simmons, the result was an entertaining romp through sports, movies, music videos and everything-but-the-kitchen-sink pop culture — with no less than 49 different YouTube2 links to click through and sample. But all those links ensured Mr. Simmons’ column would have a short shelf life. I missed the column the first time and saw it when ESPN spotlighted it again last week. And the moment I saw “YouTube,” I knew I was too late. Sixteen of the clips — nearly a third of them — were gone, axed for violating YouTube’s terms of use3, removed at the request of copyright holders, or taken back by the users who posted them. David Letterman’s raw, heartfelt post-9/11 monologue? Removed at the request of CBS. Whatever Mr. Simmons billed as “the second greatest YouTube clip of all-time…unless you’re a Yankee fan”? Gone — Major League Baseball’s new-media arm objected. The trailer for “Karate Kid III”? Removed for violating YouTube’s terms of use. A clip from the ancient proto-reality-TV show “Battle of the Network Stars”? Ditto. A clip of great baseball fights from ESPN, Mr. Simmons’ employer? Going, going, gone. “I figured some of them would get pulled,” Mr. Simmons says via email, adding that “I was going to do a follow-up column with reader suggestions but decided against it. … I would actually use You Tube clips all the time to accentuate points in columns or give background to a play or game I was writing about, but I think it’s frustrating to readers to click on those links three hours after the column has gone up and the clip has already been pulled.” YOUTUBE’S TRAVAILS   • YouTube Finds Rights Deals Frustrating4 11/03/06   • Media Titans Pressure YouTube on Copyrights5 10/14/06   • Is YouTube a Legal Gamble for Google?6 10/11/06   • Google Agrees to Buy YouTube7 10/10/06   • YouTube Model Is Compromise on Copyrights8 09/19/06   • YouTube Tries to Build a Lasting Business9 06/27/06   This is the YouTube curse: If a clip gets a lot of viewers, it immediately falls under scrutiny — and if it’s copyrighted material, as is often the case, the clip may well be removed, leaving useless links and frustrated viewers in its wake. Asking that clips be removed is a copyright holder’s right, of course — but this scenario raises a host of questions. Is there a level of success video sites dare not rise above, for fear of being sued into oblivion? And are our copyright laws still the right fit for an era where user-generated content is an increasingly important part of both art and daily life? YouTube is revolutionary, and it didn’t take $1.65 billion from Google to make that plain. Remember how bad Web video used to be? It was a minefield of missing codecs, players that tried to take over every function of your computer once installed, and lots of staring at the dread word “buffering.” If a link turned out to be video, many Net users would simply corner-X the player out of existence rather than wind up aggravated. YouTube changed all that. Suddenly video was easy for readers and for Web-site creators. And in time, it’s become part of more and more sites, instead of some awkward tack-on to be endured rather than appreciated. Readers can watch a video just by clicking on a still image, without going somewhere else or dealing with a new window. But YouTube’s rise has come with a built-in glass ceiling — or maybe it’s a cave roof studded with razor-sharp spikes. The vast majority of the video clips Mr. Simmons linked to are copyrighted material of one form or another: music videos, sports highlights or bits of old TV shows. And that’s true of YouTube in general. While there are video clips, even popular ones, for which the uploaders own the rights, the site wouldn’t command the audience or the acquisition price it has if it were solely a compendium of home movies and art projects. Today YouTube and the major media companies have what can safely be called a complicated relationship. Networks put clips on YouTube hoping to generate buzz while asking for other clips to be taken down. Record labels look the other way as some videos become favorites, then ask that other videos be removed. Media companies talk darkly of $150,000 per copyright violated, then strike licensing deals. As anyone who’s ever been in a complicated relationship can tell you, they often grind along until all of a sudden they get simple — by turning bad. And YouTube’s potential legal troubles have attracted a cottage industry of critics, including Web veterans who know of what they speak. “Sure, there are people on the service who are not stealing, but I gotta think the majority of their traffic comes from stolen IP [intellectual property],” Weblogs founder Jason Calacanis wrote10 back in February. “A business based on stolen IP is just not sustainable — there are too many high-priced lawyers out there.” YouTube “building a traffic juggernaut around copyrighted audio and video without being sued is like…. well Napster at the beginning as the labels were trying to figure out what it meant to them,” argued Web entrepreneur Mark Cuban11 in September, adding that it was a question of when YouTube was hit with a massive lawsuit, not if. Has the Google deal changed their minds? Not exactly: Searching for “YouTube” on those two blogs will give you an excellent primer in what could happen next — as well as the rumor12 passed along by Mr. Cuban that Google has a cool $500 million earmarked for buying peace with media companies. Last week Google CEO Eric Schmidt denied such a reserve existed. (For his part, Mr. Simmons says that he loves YouTube, but adds that “I don’t see how You Tube exists. I really don’t. It reminds me of Napster in that something that’s too good to be true probably is.”) YouTube’s champions think the Napster comparisons are unfair, pointing out that YouTube is quick to take down copyrighted material when asked, is striking deals whereever it can, and is working to develop online systems to automate identification of videos containing copyright material, with an eye toward ensuring copyright holders get a slice of revenue from ads that run alongside videos using their content. But Napster made promises and negotiated with media giants too. Yes, YouTube has struck more-substantive deals and found a buyer with market muscle and deep pockets. But neither is a guarantee of survival: YouTube may have come this far only because the media companies know it’s a better promotional vehicle than Napster was and are hesitant to repeat the mistakes of the digital-music war. And despite Google’s might, it remains at loggerheads with publishers over Google Book Search, which poses some of the same issues as YouTube. (A YouTube spokesman said the company wouldn’t comment for this article.) YouTube is ingenious. It’s a pleasure. In some cases it’s clearly been a boon for content creators. (Take the “Saturday Night Live” skit “Lazy Sunday,” an early YouTube favorite now available from NBC13, or OK Go’s video for “Here It Goes Again,” still available14 on YouTube.) There is genuinely popular material on it that isn’t violating copyright, a claim that was hard to believe when made by Napster and its ilk. (Take this quietly haunting clip15, seen more than 3.5 million times.) It can be argued that it serves a social good. (The FBI and the Los Angeles Police Department are investigating two officers16 for allegedly beating a suspect last summer — in large part because of a video17 that’s been seen hundreds of thousands of times on YouTube.) Certainly it’s become a media force in its own right. (The Republicans might still control the Senate if not for Virginia Sen. George Allen’s “macaca” remark18, widely disseminated on YouTube.) But none of that changes some basic issues. Much of the material on YouTube belongs to somebody other than the person who uploaded it, with many videos that don’t pose legal questions reaching a mass audience by riding on such material’s coattails. YouTube knows this perfectly well, and while it wasn’t founded as a clearinghouse for content that doesn’t belong to uploaders, it’s built a lot of its business serving as one. Content owners have rights, no matter how Neanderthal some may feel they are in exercising them. They have a right to defend their copyrights, even if that means passing up additional exposure for their content. They have the right to pursue their own content strategies, no matter how fragmented or inelegant or theoretical those may be. They have the right to do nothing with their content, even if that seems like a shame. Moreover, there’s a certain coercion at work in Google Book Search (which I’m a fan of19, by the way), YouTube and other popular models that claim to be better methods of disseminating information that serve a greater good. But having said all that, one can’t help feeling that something is askew, that the legal black and white is missing something vitally important. Maybe a little coercion is what’s needed — particularly when the balance between content owners’ rights and the public good seems increasingly out of whack. Lawrence Lessig opens “Free Culture,” his superb book on copyright and creative control in the Internet age (see more here20), with the Supreme Court’s 1945 decision ruling that aircraft weren’t trespassing on the property of the Causbys, a North Carolina farm family, despite long-established law declaring that property rights extended to “an indefinite extent, upwards.” Such a doctrine “has no place in the modern world,” wrote Justice William Douglas, who imagined near-infinite trespass suits against airline operators and concluded that “common sense revolts at the idea.” So it is here. Digital technology has exploded the old paradigm of content being handed to us at a set time in a set format. We now increasingly repackage media to suit ourselves – time-shifting it with TiVo, clipping it with video-editing software or remixing it for other purposes, and posting it with YouTube. That transition is a wrenching one for content creators, and we shouldn’t expect them to surrender how that content is used without compensation or discussion. But it certainly suggests that the old doctrines have less and less place in the modern world, and shouldn’t be kept alive solely through the brute force of lobbying and litigation. Even if your taste doesn’t run to art assembled from digital footage, YouTube is increasingly the new digital watercooler of office, bar and living-room discussions. If you missed out on last night’s big event, you can catch up on YouTube. (And, increasingly, many people see such events for the first time there.) Doesn’t that have some value as well? Music videos don’t belong on YouTube — they’re entire works of art in their own right, and a market for them exists. (Witness iTunes.) But beyond that, where’s the harm? It’s risible to suggest that content owners are hurt by videos of teenagers lip-synching to hip-hop songs, that the market for sports DVD is destroyed by fans being allowed to relive a team’s great moment, or that artists reusing footage of some famous televised event destroys interest in documentaries. Mr. Letterman’s post-9/11 monologue resonates for Mr. Simmons and others five years later — shouldn’t it be available online? I couldn’t find it; a CBS spokeswoman said she doesn’t think it’s available. It should be: It’s part of our common culture, along with those big sports moments, bits of televised history and famous TV moments. Isn’t there some social value to making these bits of video simply and easily available for anyone and everyone to view, reinterpret and comment on? We could spend decades working through the thickets of rights issues, with the risk of a few holdouts wrecking the entire thing through litigation. We could endure a long game of intellectual-property Whack-a-Mole, in which YouTube is ruined by litigation, then replaced by a new video-sharing site that catches the public imagination until it too gets too big to survive a legal barrage, and lather, rinse, repeat — all as links go dead and exchanges of ideas are stifled. We could settle for that. But as Justice Douglas once did, perhaps we should wonder if this legal tangle has a place in the modern world. There has to be another way. What should the rules be governing Web content on sites like YouTube? Write to me at realtime@wsj.com21 — comments are posted periodically in this column. If you don’t want your comments considered for Real Time, please make that clear.

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