Why the YouTube-Viacom Judgement Is A (Small) Victory For Law and Culture

Many of you will no doubt remember the heady, early days of YouTube. The promising new site that simplified video sharing was (and still is) all the rage, mainly because it allowed people to share the bits of video they were watching and liked with others.

Of course, that also meant that you couldn’t go two clicks without stumbling on a short snippet of The Daily Show, a music video or part of a movie uploaded to the site without the owner’s consent. Seemingly overnight (but not really), the web was awash with things that used to be limited to TVs, cinemas or the radio.

Unsurprisingly, content owners weren’t exactly happy about this – and so Viacom, after initially signing a content distribution deal, sued YouTube when Google bought it out.Viacom’s argument essentially boiled down to the idea that YouTube had evolved into a major business by ‘stealing content’.

A judge disagreed, and this week he passed a summary judgment that supported Google’s claim that YouTube was protected by the Digital Millenium Copyright Act and was not liable for infringing content.

Viacom were understandably disappointed. But here’s why the judge’s ruling is not only good for Google – it’s good for all of us and the culture we inhabit.

Why Viacom Were So Eager To Sue

For decades, the business model of media had been about centralized control. This wasn’t about a conspiracy or them ‘being evil’, but the simple fact that the technology to make and distribute media was big and expensive – CD/DVD pressing plants, large print houses, TV and Film production etc. – and so the centralized means of distribution was only available to large organizations and companies. This is how the mass media industries developed.

The problem with the burgeoning new ‘Web 2.0’ site YouTube was that it, like so many others, started to challenge the way media had traditionally been distributed. Rather than a only small group being able to afford it, the web allowed exponentially more people to spread media of all forms. What’s more, because it was decentralized and scattered all across the web, it was hard to control. Post a video on a site like YouTube and, in certain rare occasions, a million of people can have watched for free before the content owners even know it’s up.

So Viacom did what any profit-motivated company would do: they fought for their business model. They said “YouTube is robbing us of capacity to control the distribution of content we legally have the copyright to and are hurting us”. Not exactly in those words, but that’s what their argument boils down to.

Apparently, a judge disagreed.

The Law is On Google’s Side

The decentralization that Viacom is fighting, however, also meant that the legal and economic framework through which media worked had to change. One part of this, in the U.S. anyway, was the 1998 Digital Millenium Copyright Act,  and it was the DMCA that protected Google.

Why? Essentially, it’s something called the safe harbor provision, which protects sites like YouTube as not being responsible for hosting infringing content. Instead, the onus is put on content owners to abide by a ‘notify and takedown’ principle. If Viacom informs YouTube that a video is infringing, Google must take it down.

It isn’t perfect and it’s ripe for abuse, but at the very least, it protects a site like YouTube from constantly having to police the hundreds of thousands of videos that go up every single day. The sheer scale of web-based media also means that simply knowing about the existence of infringement isn’t enough to be made liable for that infringement – the onus is on the content owner.

Put another way, for all the problems with the DMCA, this aspect actually respects the reality of the ways in which the web differs from other media. The judge was quite clear about the fact that it is not Google’s responsibility to monitor others’ content. It’s sole task is to respect the letter of the law, which it has done.

Why This is Good for Culture

So, legally Google is in the clear. But more importantly, the decision (for as long as it holds) was one good for culture.

Why? Well, it respects the nature of the web as decentralized, fast-moving and often chaotic. It also speaks to the way in which attempts to lock down or control content are stymied by the web because the web is a new technology that allows almost anyone to re-distribute and re-purpose content. To have attempted to handcuff Google into policing the activity of its millions of users would have been profoundly ‘anti-internet’.

It also seems worth pointing out that people put up videos of their favorite songs not because they are entitled or sleazy or disrespect copyright but because a new technology has allowed them to share things with people they know and people they don’t. This aspect of the web is good. It encourages creative remixing; it provokes satirical re-use of mainstream content; this messy, constant flow of culture is what the web is about.

What this also means is that content owners are forced to find ways to monetize the decentralized distribution of their content – NOT try and ‘re-centralize’ it. They also have to find a way to monetize the re-purposing of their content – say like a minor fee for reusing a major label song in a video – rather than simply slapping teenagers or stay-at-home parents with DMCA takedown notices for dancing to a Ke$ha song.

More to the point, it means that if this judgment holds, it’s a victory for the people who want to access and use culture by putting in a grand digital archive like YouTube. Things that clearly infringe will get taken down and everything else will stand. And that kind of perspective that respects the newness and massive change that the web represents, is better for all of us and our culture.

And if companies like Viacom figure that out and think in similarly new ways, it will be better for them too.

Note: Viacom are appealing the decision and it’s likely that this will drag on for years. This is why I’ve labeled this a ‘small’ victory – because it’s likely just a temporary one.