YouTube is the New Napster-- by Nate Winter

YouTube, Google's golden egg of online video, has found itself in the copyright-infringed ire of media giant Viacom. Speculation as to YouTube's ability to avoid copyright tangles came from every direction when Google purchased the start up for $1.65 billion last fall. The suit filed by Viacom, owner of Paramount Pictures, MTV, Nickelodeon, Comedy Central and other high profile media properties, claims that YouTube distributed Viacom's copyrighted content (pretty much just Daily Show and Colbert Report clips) without permission (which it undoubtedly did).

Amidst the inevitable hubbub about the internet's ability to defeat big business propriety and make information free or the future of online video as we know it, it occurred to me that we've seen this situation before. Does the word "Napster" ring a bell?

What Napster was for online music in the late '90s, YouTube is for video now. There are some situational differences, but we'll deal with those in a moment.

The key commonality is the nature of Napster and YouTube as empty frameworks dependent on users to provide content. A metaphor I'm fond of from the days of Napster's legal troubles is that of a bong. It's perfectly legal to build and own a bong (which you call a "water pipe" to stay out of trouble). There are uses of a bong that are legal, such as smoking loose tobacco. But, come on, we all know what people really use bongs for. The same goes for Napster and YouTube. Their frameworks can be used to share non-copyrighted, user-generated content, which is totally legal, but it's only a matter of time before people begin to use these tools for evil.

So the questions posed by the Viacom suit are, "To what extent can YouTube be held accountable for the actions of its users?" and "How closely does YouTube have to watch the content that users add to weed out copyrighted material?" Using Napster as a precedent, the answers are "Very accountable" and "Extremely closely," respectively.

There are key differences, however, between Napster's legal troubles of yore and YouTube's hot seat position today. Money is a big one. Metallica went after Napster to set a precedent: copyright holders should have control of their copyrighted material, especially when it is being stolen. Shawn Fanning, while a minor celebrity for Napster's popularity, was far from a blank check waiting to be written.

With YouTube, precedence be damned! Viacom is out for blood-- the almighty dollar. YouTube's rise to online video domination was founded on distributing copyrighted material (SNL's "Lazy Sunday" anyone?), but its penniless co-creators weren't high on anyone's list of legal targets. But when Google's deep pockets got a hold of YouTube for the highly-publicized sum of $1.65 billion, legal radar went berserk and media owners started seeing dollar signs.

The second difference is that of owning versus access on demand. Napster users traded files and maintained complete control of the .mp3s they downloaded, whereas YouTubers have access any time, but can't remove a clip from the YouTube framework. Will this distinction make a difference for Viacom vs. YouTube?

I think it should mean a far lighter penalty for YouTube. YouTube isn't giving ownership of copyrighted material to people, just showing it to them for free. YouTube is like a radio station that doesn't pay its ASCAP dues. [ASCAP is The American Society of Composers, Authors and Publishers. Distributors, like radio stations, pay dues to ASCAP for the rights to play copyrighted music for a mass audience. ASCAP uses these dues to pay dividends to artists based on how often their songs are played.]

In AdAge.com's article from March 18, 2007 entitled, "At Stake in Viacom vs. Google Lawsuit: Future of Media" contains an interesting point about an alternative solution for Viacom.

"Jeff Jarvis, author of Buzzmachine.com, has been loudly critical of Viacom's anti-YouTube actions because, he said, 'Viacom is trying to position this as stealing, but the truth is it is [Viacom's] fans recommending its content. Recommendation is the new marketing.'"

Jarvis is right. Instead of trying to take YouTube/Google for everything it's worth, why not try to make a deal with them? People obviously like the content they're posting and YouTube is the way they prefer to do it. Wouldn't Viacom be better off monetizing this popularity by getting a cost per view on YouTube than spending time and money fighting it? Or if Viacom offered more content or better quality content on its own websites, users wouldn't need to post clips on YouTube at all.

I predict that YouTube/Google will have to pay damages far less than $1 billion. They'll get a slap on the wrist, but be forced to police the kind of content that is posted to the site. YouTube isn't going anywhere. There are too many grassroots videos of animals being cute and guys getting hit in the balls out there for that. But YouTube's honeymoon is definitely over.

YouTube's golden ticket lies in finding a way to monetize its popularity so it can, in turn, give pay-per-view revenue to content producers for copyrighted material. This will be how YouTube justifies its existence as a legitimate online video source and a force to be reckoned with. Otherwise it should just change its name to HitInTheBallsVideos.com.

-- Nate Winter